Sir William Blackstone (1723-1780) (Photo credit: Wikipedia)
Many people were not fans of Tony Benn. They did not agree with his politics, or his political style. For some people, he was more in the mould of Michael Foot than John Smith or Tony Blair, which may have been his most appealing quality. For others, such a distinction demonstrates the profound changes to and tension within the Labour party. However, I do not write today about his political style or about his party politics, or about party politics. I am interest in something more serious, more important, and something I always had time to listen attentively for each time he spoke on it.
Prerogative power is the dark heart of democracy
Tony Benn understood the core problem for UK democracy, and any democracy: Prerogative power. His five questions reflect his approach to prerogative power and political power more generally. When we talk of politics today, we talk of power and Tony Benn understood this. I fear he may have accepted it and thus sought to change the balance of power, shift it, rather than challenge the understanding of what modern politics is becoming. If politics is reduced simply to power, then life will become barbaric. Decent politics remains to the extent that power is constrained by the law that reflects the community’s shared sense of justice. Without, though, power, the law lacks force and it will be empty words. Tony Benn understood this, perhaps intuitively, when he focused on prerogative power.
Sovereign power does it know any limit but its own power?
His focus on prerogative power brought to light the tension at the heart of British democracy. The tension is not unique to British democracy, but the UKs’ reliance on parliamentary sovereignty, rather than a constitution, exemplifies the issue. His campaign against prerogative power, started well before the Iraq war, showed that the UK retains an antidemocratic core. Prerogative power is the power reserved to the sovereign and not available to the public. In a democracy, the people are sovereign so the government exercises prerogative power on their behalf. Except in the UK, where parliament is sovereign. Parliament, instead of relinquishing the prerogative power it wrested from the Crown, which was a holdover from the monarchy, has retained it because of its advantages. The best know example is the prerogative power to wage war. Although this is nominally reserved to the crown, the Queen is still head of state, parliament enables it. In other words, even though it is reserved to the Queen it is unlikely that she would be able to declare war, with any effect, without Parliament’s express will.
Prerogative power corrupts absolutely as it is absolute power
What Benn campaigned against, as a true democrat, was that parliament had sold its soul by accepting access to prerogative power, and leaving the monarch in place. The power to wage war is the most notable prerogative power, but Benn was concerned with the hundreds of use of prerogative power that kept power from being democratically controlled. (footnote the number of uses of prerogative power). Curiously, parliament accepted his view but insisted that without prerogative power it would have extra work that would occupy its time. In other words, the prerogative power, gives it a freedom of action that avoids the same democratic control of other parliamentary acts. One of the problems as Benn understood was that people associate the prerogative power with war, which meant they often missed how undemocratic parliament was in its activities because the prerogative power was exercised regularly without much fanfare or notice. (see the exact quote from Wikipedia).
What makes Benn worth listening to on this point was his political instinct for power as a politician and as a democratic both jealous and fearful of power. He understood that democracy was limited to the extent that prerogative power existed. He may not have read Carl Schmitt the German jurist who enabled the Nazis to take power, but they shared an interest and appreciation of prerogative power. In an interesting twist, Schmitt misunderstood the prerogative power at the heart of British parliamentary system that contributed to his failure to create such a system for the Weimar republic. Despite Schmitt’s failure and Benn’s near quixotic quest to harness prerogative power, they both shared a common point, which is misunderstood and now long forgotten by the public. Schmitt expressed this point forcefully and clearly.
Sovereign is he who decides on the exception.
By being able to define the exception to the normal situation, where normal rules of politics, justice, and law applied, and the sovereign exercised great power. They could decide when the normal rules had to be abrogated and for how long. Benn understood that prerogative power when used as stating an exception to the norm political process or the democratically accountable process. Although Schmitt and Benn were approaching the issue from different ways, in that Schmitt failed to appreciate fully how the Monarchy provided sovereignty in a parliamentary democracy in a way that the president could not in the Weimar constitution that he helped to create, they understood the need for and the danger from the sovereign or prerogative power.
In a democracy, the people are supposed to be sovereign so they should decide the exception. The challenge, though, is how to translate the people’s will or voice into specific acts. To achieve this, men form a government. The government acts as an agent for the people and as a proxy for the people. However, Britain is constitutionally different because parliament and not the people are sovereign. As Schmitt understood the ability to make this decision, to declare a state of exception or a state of war, means that the sovereign can override what was a normal state of affairs. In a state of exception, the normal rules would not apply which meant the laws did not apply. The sovereign would be free of its previous constraints so long as the state of exception existed. In the United States for example, the state of war has not been declared since 1945 in large part because it would trigger over 130 different laws that give the government almost absolute and unlimited power over the community. The declaration of war, in the United States is the moment of the exception, which is why there is a tension between the Congress’s ability to declare war and the President’s ability to wage war as the Commander in Chief and conduct foreign policy. In that sense, the Founders understood the danger from the prerogative power and split it even though the people are sovereign.
Why Benn saw prerogative power (or any power) as a threat
For a democrat, such power is a threat. It is a threat to the citizen and it is a threat to the democratic process and democratic society. The threat comes from the people no longer having direct or even indirect control of the power because they lack the sovereign’s power to declare the exception. In a democracy, the people are sovereign but if that power, the power to declare the exception is illusory, then the government becomes the sovereign over the people. As mentioned above, this is why the men who designed the United States constitutional system divided prerogative and sovereign power. They feared, as did Benn, a unitary power unrestrained acting beyond the people’s, express or even implied, will, as the British monarchy was doing. Even though Parliament had that power, Benn understood the danger from that power, which is what his 5 questions reveal.
Although a democracy has the means to answers all those questions, the parliamentary democracy presents a different challenge, which shows that Benn’s questions are limited in their effect. They are limited because they only work in a democracy where they have any influence. The people he would have asked about it, Rupert Murdoch, Joe Stalin, and Adolph Hitler, were not elected in a democratic sense. Stalin ruled a tyranny. Adolph Hitler’s party created the crisis and weakened the democracy that required his party to be chosen by Hindenburg to assume control. Hitler came to power because the Weimar constitution, shaped by Schmitt, could not control prerogative power. Rupert Murdoch cannot be said to be elected by a democratic organisation, which raises the questions as to why Benn would ask these men these questions.
In a democracy the people are sovereign but without power?
How each of these men could be deposed demonstrates the inherent advantage of a democracy because it allows one to change the government with a ballot box and not a bullet or other unconstitutional methods. Moreover, the questions only work in a constitutional system where the incumbent government accepting the legitimacy of the democratic will and leaves office without struggle and most importantly without fear of potential persecution and prosecution by the succeeding government.
Here is how Hitler or Stalin would answer questions.
What power do you have? Answer: The power of life or death.
Where did you get it? Answer: From a barrel of a gun.
In whose interests do you exercise it? Answer: I exercise it in my interest, which is the party’s interest.
To whom are you accountable? Answer: I am accountable to myself.
How can we get rid of you? Answer: Through violence or my natural death.
By contrast, a democracy or a liberal democracy can answer all of these questions and none of them requires or threatens the use of force. Although Benn’s questions are startling and cause most people to pause for thought, it is not because of their inherent quality. Instead, they appear startling because people do not think about these nor have they been educated to think about these issues. Therein we see the true value or challenge from his questions, we no longer think about these questions because we no longer think about prerogative power nor do we understand how or why governments work. If the public knows the X-factor’s “selection process” better than the government’s use of prerogative power (or Benn’s questions), what does that tell us? Perhaps this is Benn’s legacy. To the extent his liberalism has succeeded, it has come at the cost that the public no longer need to worry about political questions. Neither the questions nor their answers invoke a political response because the political questions are settled and we only debate the best way to apply the answers. In this, the questions show us how much we have forgotten about politics.
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