A popular check on the Commons (1)

(A tentative argument)

IN a recent post I claimed, referring to the Westminster constitutional model as a starting-point, that in order to restore popular representation it would be necessary to establish a popular assembly with the power, not only to block unpopular legislation, but to dismiss unpopular governments at relatively short notice; and that such an assembly would have to be constituted so as to remain more or less free of party control. This is not to argue against the existence of the familiar, party-dominated House of Commons, which seems as well suited to the role of government as might reasonably be expected (though I think it would be better suited if it had the power to choose the party leaders, as was traditionally the case). The point is, rather, that the Commons, made up of party loyalists rather than representatives of the popular interest, is now unfit to play its ancient role of a check on government. Its members support or oppose the government, and its legislative program, essentially regardless of what the people think of that government. We seem to need a new, additional institution, some kind of "popular assembly", to reintroduce such a check.

The consequences of the absence of any popular check on government between general elections are potentially quite drastic. A discredited government can remain in office for up to several years, during which time its lack of popular support does not formally prevent it from imposing whatever legislation it sees fit. In parliamentary systems we have grown accustomed to this situation (as for example in Canada under the Brian Mulroney government, in its final few years), so that it does not seem particularly illegitimate. It can also be argued that it is an advantage for a political system to provide its governments with an assured term of office—as under a Presidential system—so that they have a fair chance to prove or discredit themselves. But it is quite possible that a tyranically inclined, or merely incompetent and corrupt, government may do irreversible damage to the country during the several years before it has to face the electorate. (A notable instance of an incompetent government damaging its country may be currently be occurring in Israel, under the abysmally unpopular Olmert government.) During that period the only route open to the people to prevent a bad government from doing further damage would be the extra-legal one: to take to the streets, go on a mass strike or otherwise attempt to force the government to call an election. A democratic constitution which can require civil disturbances to remove an unpopular government may not be much of an advance over a non-democratic one.

Burke called the "confidence of the people" the "great and only foundation of Government". His view was that if a government was unpopular, it was probably bad; it therefore seems to make sense to remove it as expeditiously as possible, even if the political circumstances do not give a bad government the opportunity to do especially great damage over the short term. Being ruled by an unpopular government, even for only a few years, also seems likely to produce a malaise in a country—an atmosphere of noncooperation with the legal authority which will sap the capacity of the system for united action. Burke considered that a government could not be adequately checked on a purely legislative level: legislative restrictions still leave too much leeway for bad actions on the part of the governors. It is unacceptable that an unpopular government can issue legislative decrees, perhaps with irreversible effects; but executive actions can have equally important consequences. Here one might mention executive policy regarding international treaty negotiations, or military preparedness. In view of the vast expansion of bureaucracy and bureaucrat-made law since the eighteenth century, checking the executive branch is even more important now than in Burke's day.

Another point in favour of the ability of the people to remove their government at short notice comes from the parallel (though this is admittedly imperfect) with the treatment of lower-level officials. A wartime Prime Minister or President, for example, does not appoint his generals to fixed terms of office; he reserves the right to dismiss them at will. If he is wise, he will also give those officials an opportunity to prove themselves, without interference from himself. Still, a general who fails sufficiently conclusively will be sent packing in short order. Any constitutional guarantee of multi-year terms for generals of demonstrated incompetence would endanger the existence of the state. This suggests that the chief executive, too, should enjoy no such guarantee.

Some would nevertheless argue, notwithstanding the importance of purely executive decisions, that to achieve a reasonable compromise between the stability and popularity of the government, there should be a popular veto on legislation (combined with the usual ability of the people to replace the executive at intervals of several years), without any popular power to remove the executive at short notice. However, even if we accept this judgment, a general popular legislative veto will (at least under our constitution) include a veto over the annual levying of taxes. As a result, the popular right to at least an annual opportunity to remove the government follows logically from a general popular legislative veto. This is because if the people had no explicit right to remove an unpopular government, they could force it to step down by denying it funds. Any popular legislative veto not accompanied by the right to remove the executive would have to be limited to "nonessential" legislation: to tax increases, for example, rather than to the continuation of existing taxes. This would further weaken the popular check on the government.

The problem of instability

On the other hand, there is a compelling argument that the right of the people to remove a government at frequent intervals would lead, in some cases at least, to intolerable political instability.

This problem is most severe where there happen to be two major parties with almost evenly matched strength, especially if there are substantial policy differences between them. Here, fluctuations in the levels of support for the two parties would produce a (slight) majority which shifted rapidly back and forth between these parties. Under such conditions, could one expect the voters to refrain, out of concern for political stability, from removing the government whenever the opposition temporarily acquired a majority level of support? This seems extremely doubtful. Both sides would have an interest in reducing the frequency of changes of government, but each side also has an interest in putting its party in power whenever possible. The larger the policy differences between the parties, the greater the shared interest in stability; but commensurately greater, too, is the urgency of installing one's preferred party. Voters on neither side can afford to vote for stability unless they are guaranteed that the other side will do so as well. Since voters cannot make bargains with other voters (at least under a secret-ballot electoral system), the only way of arranging this seems to be for the parties themselves to agree to a change in the election rules, for example back to the original system of infrequent elections.

(The analogy with the appointment "at pleasure" of lower-level officials by a chief executive, described above, more or less breaks down in elections because the electorate is not a single agent able to plan rationally. In the worst-case scenario just described, its collective opinion can be decided by the views of a small minority of vacillating voters.)

This argument does not, however, mean that we have to abandon the idea of frequent popular controls on the Commons. Rather than return to infrequent periodic elections, one could salvage the principle of the rapid removal of unpopular governments by increasing the size of the popular majority needed: for example, to a two-thirds supermajority. Then in the case just described, of two almost evenly-matched parties, there is no prospect of removing the government until the next scheduled periodic election. A government will be prematurely removed only in the event of a large swing of public opinion against it.

Such swings will usually represent a decisive popular rejection of the government rather than just a meaningless random fluctuation in its level of support. They are comparatively rare; if, however, they are still considered to represent an unacceptable destabilization of the political system, that system might be given in compensation the stability of longer intervals between scheduled elections (say, six years instead of four). It seems to me that the desirability of removing an overwhelmingly unpopular government from office as soon as possible would make such a tradeoff desirable, even though the resulting election rules could sustain a moderately unpopular government longer than would otherwise be the case. Burke, incidentally, would have been the first to agree that the "confidence of the people" should not necessarily be gauged by narrow arithmetical majorities.

Implications for the legislative check

I described above how there is a need for consistency between the rules for the popular removal of a government and for any popular veto on those kinds of legislation necessary for a government to continue to function: notably, the passing of the annual budget. If the removal of the government requires a popular supermajority, but the budget can be blocked by a simple majority, then there will be some tendency for the rejection of the budget to become the preferred means for the people to oust the government. This is an argument for requiring a popular supermajority to veto some or all types of legislation.

On the other hand, blocking the supply of government funds for any length of time is a drastic action—one which a legislative assembly might be unwilling to take. In the United States, for example, one sees some friction and budgetary brinksmanship when Congressional majorities and the President represent opposing parties; yet so far this has not caused government to break down. (This may reflect the relative weakness of party ties in American legislatures; in Europe, similar rules would probably turn the President into a figurehead, and put government in the hands of the leaders of the majority in the legislature.)

Probably a nonpartisan popular assembly would be even less inclined than a majority of opposition party representatives to seek to make it impossible for the executive to govern. Any disruption resulting from an overt initiative by opposition political leaders to topple the government by obstructing the budget would be regarded as the fault of those leaders, rather than that of the government: provided that there was general acceptance of the supermajority rule for dismissing the government, the government's continuation in office would be regarded as the legitimate outcome, which the opposition was illegitimately seeking to overturn. (Note that this would mean, though, that requiring an illegitimately large supermajority to remove the government would be likely to provoke the people to make use of the "budgetary method" instead.)

However, if leaders of a majority opposition party presented objections to the budget which were accepted by the public as bona fide criticisms, rather than as an attempt to remove the government, then it seems that the government would have to go some way to meeting those criticisms, lest it appear to be ignoring the will of the majority. Again, this is similar to what one observes in a Presidential system with its separation of executive and legislative powers.

In general, it seems like an unrealistic and unreasonable idea to introduce a popular legislative check but then to emasculate it by allowing the government to pass legislation that has only minority popular support. Legitimate legislative procedures have always been more consensual, with the ideal (unattainable though it may be) being to gain the consent of not just a bare majority, but of every affected interest group. If requiring popular majorities to approve of budgets and other laws did tend to produce political deadlock or incoherence, a better solution than raising the threshold for the popular legislative veto might be to revise the authority of the popular legislature: for example, shortly after a government is elected, to approve of a budget covering the government's full term of office, and to require further popular consent only for increases in taxation above this prearranged baseline.