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Andrew Lilico: Is constitutional Conservatism finished, and what would that mean?

The Coalition has a constitutional agenda overwhelmingly set by the Liberal Democrats.

At the 2010 General Election, the Liberal Democrat manifesto contained (on page 88) the following two promises:

  • Introduce fixed-term parliaments to ensure that the Prime Minister of the day cannot change the date of an election to suit themselves.
  • Replace the House of Lords with a fully-elected second chamber with considerably fewer members than the current House.

The Conservative manifesto contained no mention of fixed term parliaments (indeed, during the campaign Cameron himself proposed precisely the opposite concept, saying that there should be a new general election every time the Prime Minister changed), and on the House of Lords it stated only that a Conservative Government would “work to build a consensus for a mainly-elected second chamber to replace the current House of Lords”.  David Cameron himself described House of Lords reform as a “third term issue”.

Of course, those two Liberal Democrat proposals are now Coalition policy.  In addition, during the coalition negotiations the Liberal Democrats insisted that there should be a referendum on changing the voting system for the House of Commons.

Perhaps even more fundamentally, whilst the Conservative manifesto promised repatriation of powers from the European Union and other measures such as reform of the Human Rights Act, these are not now part of the Coalition policy.

Thus, both in terms of accepting significant constitutional change proposed by the Liberal Democrats and in terms of rejecting constitutional change proposed by the Conservatives, the Coalition is Lib Dem dominated on the constitution.

And yet, apart from the AV referendum, these constitutional matters are rarely discussed in the press as significant “wins” for the Liberal Democrats (with the occasional honourable exception).  A key reason is presumably that it is widely assumed that the Conservative Party hierarchy had little appetite for the Conservative reforms and was itself sympathetic to the Liberal Democrat reforms even before the Coalition was formed.

This view amongst the Conservative Party hierarchy, and the ease with which it has been accepted, raises a fundamental issue about Conservatism and indeed Britain as a constitutional entity.

We can distinguish between two fundamentally different approaches to a constitution.  One is sometimes called the “French” or “American” conception, or sometimes the “Democrat” conception.  According to this idea, a constitution is a system of institutions interacting with, and drawing its legitimacy from, the People (the demos).  The establishment of, and changes to, a constitution require the consent of the People and reflect the People’s will.  The people’s will might be reflected in a constitutional convention, or a referendum, or can be taken as given if there is a sufficient “super-majority” of representatives (e.g. 2/3 of the elected members of the legislature).

The alternative – different and (as will shortly be obvious) fundamentally incompatible – notion of a constitution is the “traditional” or “British” or “Conservative” conception.  According to this idea, a constitution is the set of procedures / traditions / practices / norms governing and curtailing the actions of a ruling elite (the constitution is fundamentally “organic”).  The institutions of a constitution – in particular Parliament, the Constitutional Monarchy, the Courts, the Church – are expressions/reflections of those traditional norms.  The ruling elite derives its legitimacy from a combination of having inherited the sovereignty of the monarch as owner of the land and because it rules justly in reflection of a project for society (e.g. delivered to it by the established religion, or through some mission of civilising the world, or simply because History or Fate or God had bequeathed the task to it).  A conception of a role for voting evolved under this constitutional conception as a mechanism for selecting between parts of the ruling elite or for replacing one ruling elite by another without needing to resort to violence – but it is definitely not the Democrat/French/American conception of democracy.

Now there are all kinds of arguments offered for why either the Democrat or Conservative constitutional concept is to be preferred.  But I think it is pretty clear that in devising one’s constitutional arrangements one must choose either one fundamental approach or the other.  One is either devising structures that reflect the evolving practice of the ruling elite, or one is devising structures that enhance the delivery of the will of the demos and reflect its constitutional preferences.  One cannot have structures that do a bit of both.  That would simply result in a constitution that was an unstable mess.

I have spent much of my adult life contending for the constitutional Conservative approach.  I saw the Conservative Party’s fundamental role being that of defender and developer of the constitution – in particular, defender from the constitutional concepts that became popular in the Liberal Party from the 1920s onwards.  One might disagree with Socialists about certain economic issues, and it was of course important to have those debates, but they were all against a backdrop of broad agreement between Labour and Conservatives about the constitution.  The Liberals and liberal ideas that permeated into the Labour Right were the much more long-term threat.  Similarly, the threat from the European Union was not in the first instance economic – it wasn’t, fundamentally, about over-regulation or too many rights for strikers.  The real problem with the European Union arose once it became a threat to the British constitution.

But now I have a problem.  A real problem.  A bad problem.  For the Conservative conception of the constitution requires a ruling elite that wants to express its norms through organic, evolving institutional arrangements, that wants to defend its position within such a constitution, and that seeks to rule justly according to some project for society.

But the British ruling elite seems to me to have lost all desire for that sort of constitutional role, all sense of having any confidence in its own ability to rule justly, and any sense of a project for society.  So even if I am correct to believe that a Conservative constitutional concept is better than a Democrat one, it is not clear to me that constitutional Conservatism is any longer feasible.  That's clearly disappointing, and I am naturally reluctant to accept final and total defeat for my main motivation to be involved in politics, but sometimes you have to know when you're licked.

If constitutional Conservatism is feasible, we should be reactionaries, attempting to reconstruct the constitution on Conservative lines to repair the enormous damage done to it under Major and Blair.  If constitutional Conservatism is no longer feasible, we should presumably engage in wholesale Democrat-based reform of the constitution – going far beyond current plans.

Or…or…we shouldn’t bother.  Because, as I’ve argued before, if constitutional Conservatism is no longer feasible, it ceases to be clear to me what merit there is in Britain as an independent constitutional entity.  I know many readers (many that call themselves “Conservatives”) are really English or British Nationalists of the pure “my country right or wrong” variety.  I’m not.  For me, the point was always that it was undesirable to be merged into the Single European State because the British constitution was better.  But, I don’t see in what way a Democrat-based British constitution would be better than the constitution of the Single European State .  Even if you believe that some ideal Democrat reforms of the British constitution could make it better than the constitution of the Single European State, how confident is it realistic to be that Democrat-based reforms of the British constitution – which would of necessity be wide-ranging and subject to all kinds of risks along the way – would actually deliver that Democrat constitution you hope might be better than the Single European State?

I see little reason to believe this.  I believe that the natural alternatives are constitutional Conservatism (which now requires us to be radical reactionaries, and requires a ruling elite willing to take on its prescribed role) or Europhilia.  And of course the Liberal Democrats believe, also, that Europhilia is the natural result and consequence of their preferred constitutional model.  What’s it to be?  Do we embrace the darkness, become Europhiles or Nationalists, or can we yet find some way to be constitutional Conservatives?


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