A disgraceful abuse of power

On October 8th 2016 the Dundee Courier printed a letter I wrote (see below) following the Conservative Party conference. Theresa May had suggested that she would take the UK out of the EU’s Single Market. Yesterday she confirmed that stance, and clearly intends to sideline Parliament who will have no say in whether the UK stays in the Single Market. In October I wrote that “this would be the most disgraceful abuse of power by any British politician since the introduction of universal suffrage”. I stand by that, and everything that I wrote in this letter.

My letter was edited by the Courier. The original version said, “to her the will of the people means what a majority of Leave voters want, ie a minority of those who voted. The 48% and less extreme Leave voters don’t count“. The highlighted text, which the Courier removed, is important. May, without any mandate, intends to transform the UK and its relationship with the EU and the rest of the world even though she knows that she lacks the support of the majority of the British people. This is indeed a disgraceful abuse of power and a travesty of democracy, all in the interests of her career and her party rather than the country.

no mandate

“The healthy will of the people” – a lesson from history

English has probably not imported as many words and phrases from German as it has from French, but quite a few have made the journey; kindergarten, schadenfreude, flak, zeitgeist, vorsprung durch technik. One German phrase that we haven’t adopted is “Gesundes Volksempfinden”. It might be a mouthful, but it is painfully appropriate for the current frenzy surrounding Brexit. It literally means the healthy feeling (or sentiment) of the people. A more useful translation would be the will of the people.

Gesundes Volksempfinden is a highly loaded and sensitive phrase and would not be used lightly by German papers. It is a Nazi legal concept. When the Nazis came to power they had a problem. They had inherited a working legal system. Judges tried cases according to the law and could acquit, or find in favour of, the wrong people; Jews, Social Democrats, dissidents. Sure, there was an ample supply of uniformed thugs willing to break windows, beat up undesirables, and even kill them, but that was a tad vulgar. It was hardly an efficient way to run a modern state and earn a nod of approval from the 1930s Daily Mail.

The problem was resolved simply. First, in 1934 the Nazi regime issued a decree that civil claims should be settled according to Gesundes Volksempfinden, the healthy feeling of the people, regardless of what the law actually stated. In 1935 the German Criminal Code was amended in the same way.

Where the written law was in conflict with the “healthy feeling of the people” (as interpreted by the Nazis, and ultimately Hitler himself) judges were required to convict, regardless of what the statute actually said, even if the law did not cover the actions of the accused. The phrase was picked up as “the healthy will of the people” by an approving Oswald Mosley, the British fascist leader, and poster boy of the Daily Mail.

After the war US Army legal officers took a close look at how the Nazi legal system had operated. Their report described a case that illustrated how Gesundes Volksempfinden worked. In the days when it was still possible for Jews to seek redress through the courts a group of Jews had contested a decision that stopped them receiving rations. They won, only for the decision to be overturned for the following reason.

The judge should have asked himself, ‘What is the reaction of the Jew to a decision which, without devoting one word to the healthy folk attitude [i.e. Gesundes Volksempfinden, the will of the people] toward this insolent and arrogant Jewish conduct, takes 20 pages to prove that he and 500 other Jews are right and victorious over a German authority?’

Even if the judge was convinced that the Food Office had arrived at an incorrect judgment he should have chosen a form for his ruling which avoided at all costs harming the prestige of the Food Office and thus putting the Jew expressly in the right toward it.

This is reminiscent of a famous English legal case I will come to in a moment. But first I will turn to the press hysteria that followed the decision of the High Court in London finding that Article 50, starting the UK’s exit from the EU, could not be initiated without the approval of Parliament. The central reason for the court’s decision was that the Prime Minister cannot use the Royal Prerogative to remove our rights. Only Parliament can do that. This point was widely ignored in the right wing press, which instead accused the judges of defying the will of the people and taking a pro-EU, anti-Brexit, political stance.

Daily Mail front page

The Daily Express indulged in laughably hysterical hyperbole. The Daily Telegraph was rather more subtle, printing photographs of the three judges with a sinister blue filter, under the headline “The judges versus the people”.

It was the Daily Mail, however, which launched the most offensive attack on the judges. The headline was “Enemies of the people” and invited us to disapprove of utterly irrelevant and harmless details about their private lives. The front page was compared with an edition of the Nazi paper, the Illustrierter Beobachter, depicting a group of Social Democrats as “Traitors to the people” and reporting that they had been deprived of their German citizenship. They were usually identified incorrectly as judges on Twitter but there was a valid underlying point; opposition to “the people” had put them beyond the pale, beyond the law.traitors to the German people

In an editorial the Mail called the judges “an out of touch clique” who were guilty of “an outrageous betrayal of democracy”. The Mail then went on to make an intriguing argument, that deserves more discussion.

On a blinkered reading of statutes… it is possible to argue that the Government lacks the authority to trigger Brexit without the go-ahead of the Lords and Commons. But from every other viewpoint, the ruling flies in the face of justice and common sense. Wouldn’t any judge of real stature (the late Lord Denning springs to mind) have picked a way through the dust-encrusted legal textbooks to see the wood for the trees and come down on the side of reason? … The High Court yesterday betrayed common sense and the people.

So the Daily Mail grudgingly conceded that the ruling might have been correct in law, but that it offended the will of the people. They argued this even though the judges explicitly stated that the law allows the courts to recognise the will of the people only as it is reflected in laws passed by Parliament. Nevertheless, the Mail used language, and an argument, that is entirely consistent with the Nazi ruling I referred to above. To hammer home their point they invoked Lord Denning, who acquired an unfortunate reputation for being too inclined to favour the executive arm of the state over the liberties of the individual. He is now chiefly remembered, by non-lawyers, for his remarkable conduct in the case of McIlkenny v. Chief Constable of the West Midlands in 1980. This was a case brought by the Birmingham Six, alleging police brutality at the time of their arrests in 1974. Denning dismissed the case.

Just consider the course of events if this action were to go to trial… If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous. That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal… This is such an appalling vista that every sensible person in the land would say: it cannot be right that these actions should go any further. They should be struck out.

All these dreadful allegations about police misconduct turned out to be true, but they could not even be considered by the court. In 1980 Lord Denning was very much in touch with the public mood. Following a succession of terrorist attacks there was an ugly anti-Irish mood in Britain. The case of the Birmingham Six was just one of a series of miscarriages of justice in which the state acted illegally, but in line with the will of the people. This is the justice that the Daily Mail is calling for; their argument and that of Lord Denning is exactly the same in principle as that of the Nazi judgment on food rations for Jews. Call it the will of the people, or Gesundes Volksempfinden, it is the same thing.

What sets free and prosperous societies apart is reliance on the rule of law. Without that nobody can be confident about anything. No-one has an incentive to work and build for the future. State power is arbitrary. People keep their heads down and don’t take chances.

When Mikhail Gorbachev was planning the reform of the USSR his adviser Alexander Yakovlev wrote to him.

For a thousand years we have been ruled by people and not by laws… What we are talking about is not the dismantling of Stalinism but a replacement of a 1,000-year old model of statehood.

Throughout the 1990s Russia struggled to introduce the rule of law. When he came to power Vladimir Putin reversed the process. Russia today is a land ruled by Putin, not by law. Putin is an autocrat, admired by aspirational demagogues such as Donald Trump and Nigel Farage.

Needless to say the ineffably gormless Farage has led the assault on the rule of law, insulting the judges, calling for street protests, and bizarrely saying the judges’ rejection of the government’s case caused him to doubt their independence.

Farage, the Mail and the Express are not Nazis, but they have scant regard for, or even understanding of, the forces they could unleash. Once the rule of law is undermined we will not be ruled by the consensus of sensible chaps discussing politics over a gin and tonic at the golf club. We will be subject to the vagaries and rages of the mob, which can be manipulated by an autocratic leader. That mob includes violent extremists who have picked up the message from the right wing press and UKIP politicians that their views are no longer peripheral, but are now mainstream. Farage is so lacking in sensitivity and awareness that little more than a week after the MP Jo Cox was murdered by a gunman, who called her a traitor, he could crow, during a referendum victory speech, that Brexit was a victory for decent people who had won “without a bullet being fired”.

What, meanwhile, has the UK government done to shore up the rule of law, and the independence of the judicial system? Liz Truss, the Secretary of State for Justice and Lord Chancellor, has merely issued a bland defence of the principle of independence, without commenting on the campaign of intimidation. The Prime Minister has defended the press despite its appalling behaviour and government ministers have been queueing up to attack the High Court.

The rule of law and an independent judiciary protects us from violent mobs and from arbitrary state power. When the Daily Mail and Nigel Farage use language like “enemies of the people”, and argue that “the will of the people” should take precedence over the law we should reflect on history. We should remember Gesundes Volksempfinden, the healthy feeling of the people, and we should shudder.

Boris Johnson; not offensive, just wrong – and foolish

You’d think experienced politicians would know that you don’t use analogies involving Hitler or the Nazis to make a political point unless you’ve got a clear, relevant and closely argued line of reasoning. Even in those cases the consequences of going nuclear by pressing the Hitler button can backfire badly. The debate can switch away from the controversy in question as the media focus on the Nazi jibe. Usually it’s a simple choice. You can keep some measure of control over the debate, or you can invoke the Nazis.

Ken Livingstone blundered into this particular rhetorical mantrap the other week with his assertion that Hitler was at one point a Zionist. The left’s rather uncomfortable history regarding Israel, Zionism and Jews isn’t my concern here, however. That is just one of the issues Labour needs to sort out on its long march back to power.

What prompted this blog was Boris Johnson’s much trumpeted comparison between Hitler’s ambitions for Europe and the 21st century European Union. In fairness to Johnson he wasn’t saying the EU is in any way similar to the Nazi regime, merely that the EU’s vision of Europe is consistent with a long and sorry history of failed attempts to recreate a European state.

“The whole thing began with the Roman Empire,” he says. “I wrote a book on this subject, and I think it’s probably right. The truth is that the history of the last couple of thousand years has been broadly repeated attempts by various people or institutions – in a Freudian way – to rediscover the lost childhood of Europe, this golden age of peace and prosperity under the Romans, by trying to unify it. Napoleon, Hitler, various people tried this out, and it ends tragically,” he says.

Well, so far so reckless. It’s a point of view with which I’d disagree, but I don’t find it offensive, just silly. Dragging Hitler into the debate over our EU membership is rather like flinging a decomposing rat onto the table during a meeting. Whatever point is being made is rather lost while people recoil. Debate ends and disgust takes over.

Aside from the obvious objection that the EU’s vision of a closer Europe isn’t merely a difference in tone, but is a radically different vision of the destination, Johnson’s analogy disintegrates when it is picked apart in the context of the UK’s referendum on EU membership. That becomes clear when you consider Johnson’s follow up to the quote above.

While Mr Johnson is not arguing that the bureaucrats of Brussels are Nazis attempting to bring back Hitler’s Reich, his comparison is startling. Clearly, he sees parallels between the choices that confronted his beloved Churchill, and Britain, during the Second World War and the decision facing voters next month.

“This is a chance for the British people to be the heroes of Europe and to act as a voice of moderation and common sense, and to stop something getting in my view out of control,” he says.

“It is time for someone – it’s almost always the British in European history – to say, ‘we think a different approach is called for’.”

Johnson sees the Brexit campaign as analogous to the UK fighting for the soul of civilised Europe in the Second World War. I can see why he thinks that is an attractive picture, but he has got the argument exactly the wrong way round.

Hitler’s vision for Europe wasn’t a superstate running from the Hebrides to the Urals in which Britain was a western province. Hitler looked east, and he expected Britain to remain a maritime nation, with its non-European empire. Hitler’s navy was a tiny force compared to the Royal Navy and, pre-war, was never seriously intended to challenge Britain. Hitler’s admired the British Empire and, uncomfortably for modern Britons, saw it as a model for German rule of eastern Europe. German would dominate mainland Europe, and Britain would withdraw from any involvement, or interference in that German sphere of influence.

It was only Britain’s determination to remain involved in mainland Europe by declaring war in 1939 then refusing to negotiate peace in 1940 that turned the war into a fight to the finish and persuaded Hitler that Britain must be invaded and crushed. The comparison between the Nazis’ European vision and that of the EU fails most obviously because invasion and mass murder are fundamentally different from peaceful union and co-operation, rather than alternative means to the same end, as argued by Johnson. But the comparison fails even on its own narrow terms; the vision of the Brexit campaigners would result in a Britain detached from mainland Europe, lacking influence in a structure increasingly dominated by Germany. Such a Europe, with Britain isolated and irrelevant to the big events on the mainland, has more in common with the Nazis’ European vision than the current EU of which Britain is a member with considerable, if erratic, influence.

The British Empire is long gone, thank goodness. This is not the 18th century. A Britain outside the EU and isolated from the European mainstream wouldn’t be a maritime nation swashbuckling around the high seas. Britain would be a confused, more insular place, unsure of its role in the world, having antagonised and irritated its friends and erstwhile partners, while the USA is increasingly looking to its west, across the Pacific.

The Brexiters have no clear and credible vision for the future, only a yearning for a past that can never return. Does Johnson know this? I’m not sure he cares. His vision for the future is one that will enrich and empower one Boris Johnson. Everything is subordinate to that vision. His invocation of the Nazis was politically inept and, I fervently hope, will fatally undermine his personal and political campaign. I want to see a Britain committed to Europe. That is our future, and it is consistent with our past to a far greater extent than Boris Johnson is prepared to concede.