What’s a government?

Rei-artur and Kjoonlee, Public domain, via Wikimedia Commons

The contentious British House of Commons debate over immigration on January 17 involved an accidental lesson in civics delivered by two members of parliament, both important if currently on the periphery. It was at once not an edifying encounter – yet educational, if you look hard enough.

Stella Creasy (Labour, Walthamstow), a former shadow minister, sought to wrong-foot Suella Braverman (Conservative, Fareham), until quite recently Home Secretary. Braverman, leading the attack against her former colleagues’ bill to send deport some asylum-seekers to central Africa for processing, made the case instead for much stronger legislation, uprooting the UK adherence to rulings of the European Court on Human Rights.

Creasy quipped back: “I just wonder if she could clarify, because she’s got a concern there about a ‘foreign court’. What does she think NATO is?”

Braverman, stating the obvious, replied: “NATO is not a court.” Point, Set, Match.

That Creasy, foolishly, used NATO as a rebuttal to Braverman’s argument was unfortunate. It allowed the important question of the balance of power to escape in a wave of smug derision.

The exchange raises a larger question about how states govern their domains. In British usage, the term “government” applies to the collection of ministers who administer the operations of the public sector. That’s not what anyone educated in an American high school would have learned about civics. The US constitution asks us to think about “government” as comprised of three co-equal branches: the legislature, the executive, and the judiciary. It is the foundation of the layers of checks and balances it then adds to prevent excessive power accumulating in the hands of any one political institution. The reason for that rests in British governance: the overbearing power that King George III exerted over the 13 colonies along the eastern seaboard of America in the 18^th century.

In Britain, the loss of those colonies set off a change in governance. Power drained from the monarchy to parliament; political theorists now speak of “Parliament” as sovereign. Parliament. Not the King, and not the executive, which is made up of a subset of parliamentarians but acting in an executive rather than legislative capacity.

As in the US, however, British governance has undergone a gradual creep of power from the legislature to the executive. In America it’s most evident in the swelling use of executive orders. In Britain, it’s most apparent in the prevalence of “secondary legislation”, changes to the law that come by simple ministerial decision, without a vote in parliament.

The legislation before parliament on January 17 would yank power from the judiciary and place it in the hand of the executive – primary legislation to create the basis for secondary legislation later. Ministers, not parliament, not judges, would decide whether a foreign jurisdiction was “safe” for those asylum-seekers who were kicked out of Britain. That some of those judges were on the ECHR was, well, by the by.

The arrogation of power by the executive branch in America is what the Republicans have decried at least since the election of Ronald Reagan as president in 1980. One of the saddest ironies of the current presidential campaign is that we hear the 45^th president, in trying to become the 47^th, flirting with seizing even more power. He invokes Reagan’s quip about the “nine most terrifying words in the English language” – “I’m from the government and I’m here to help” – while also baldly saying he’ll act as dictator when he returns to the White House. As I wrote in 2017, he showed a similar tendency on his first working day in the Oval Office – that he would rule as if by divine right. King George III, crazily, reincarnated.

Francis Fukuyama has argued that enduring political order requires three elements in balance: power, legitimacy, and the rule of law (Fukuyama, 2011, 2014).

Neither UK nor US governance is well served when power trumps the rule of law and in so doing throws legitimacy to the wind.

Fukuyama, F. (2011). The Origins of Political Order: From Prehuman Times to the French Revolution. London: Profile Books.

Fukuyama, F. (2014). Political Order and Political Decay: From the Industrial Revolution to the Globalization of Democracy. London: Profile Books.