The age of the three referendums – why we are only partly through this significant constitutional moment

15th May 2021

One of the more refreshing shifts in historiography was when historians turned from ‘the English civil war’ to ‘the war of the three kingdoms’ – acknowledging that the conflicts of the mid-1600s were more to do with the politics and conflicts of Scotland and Ireland than a purely English affair.

Future historians looking at the age of Brexit may similarly have to see how Scotland and Ireland were causes of immense political instability and potential constitutional crisis.

For the referendum we all know about – and the one we are all preoccupied about – may for historians seem to be just the first of three.

And those historians may group together the 2016 Brexit referendum with a yet-to-come Scottish independence referendum and border poll in (Northern) Ireland.

It will be the fall-out of the three referendums taken together which will be the end and beginning of a chapter in our constitutional and political history.

This is not to predict the outcome of those referendums – or the outcome of what would then (if anything) that follows those referendums.

In this time of unwelcome and unexpected political surprises, few can be confident in forecasting what things will happen next.

But the 2016 referendum may be seen as just one move of a gear in something more complex – the recasting of the state of the United Kingdom.

The one thing which may be certain is that the (perceived) mandate of any referendum result now has a greater charge than before.

Brexit was carried through at speed and with no real planning in the face of opposition (and of reality) because of the purchase of a referendum result.

It is therefore difficult to deny, if either or both of the upcoming referendums (if they happen) vote for change, that such a change can be opposed on the basis of a higher priority for the will of parliament.

We may find that one cannot pick and choose the ‘will of the people’ – if there are to be referendums, then the expectation is now (more than before) that the results will be implemented.

But we also may find that the experience of Brexit will turn people against voting for further drastic changes – that the next referendums are reactionary rather than radical in their nature.

Of course: there will be those historians – like there are for the civil wars – who will say, with hindsight, that the outcome was inevitable all along.

Those of us here at the time, however, can only seen uncertainty and multiple contingencies.

 

Boris Johnson is not like Winston Churchill – he is far more like Benjamin Disraeli – and this should worry liberals and progressives

14th May 2021

To adapt what Tolstoy once said about unhappy families, each successful politician is successful in their own way.

No two successful politicians are exactly alike: each one prevailed in a unique fact situation which required their distinctive qualities.

But: as long as one does not take it too seriously, comparisons can be interesting.

And the thought struck me the other day that the current prime minister is not like his proclaimed hero Winston Churchill but instead like another Conservative prime minister Benjamin Disraeli.

If this comparison is sound then the opposition parties should be worried.

This is because Churchill was only successful in general elections when he was in his dotage as a national treasure.

Disraeli, on the other hand, took on William Gladstone in his prime and won – and he also placed the Victorian Tory party on a popular electoral basis that it has never really lost since.

Disraeli, in short, is perhaps the most formidable Conservative leader progressives in this country have ever faced in electoral combat.

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There are four points of comparison between Johnson and Disraeli.

*

The first is how Disraeli weaponised an issue that he himself did not especially care that much about, one way or the other, so as to destroy a prime minister and thereby to promote his own career and leadership admissions.

For Disraeli this was the corn laws and his target was Robert Peel, and for Johnson it was Brexit and David Cameron and Theresa May.

In particular, Disraeli could quite easily have written two pamphlets – for and against the corn laws – before going with the one which mobilised the better political support, just as Johnson wrote his infamous two newspaper columns for and against Brexit.

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The second point of comparison is how Disraeli gamed the constitution in 1867 so as to suddenly provide the Conservatives with broader, urban-based, populist political support – with the huge extension in the electoral franchise.

The gaming of the constitution was against (supposed) Conservative principles – as contemporaries such as the young Lord Salisbury averred – but Disraeli did not care, as political expediency trumped political consistency.

And again, that is what Johnson is doing now – and not only with Brexit but with the the various attacks on constitutional norms, from the independence of the judiciary to the prorogation of parliament.

One can imagine the ghost of Disraeli nodding in admiration, at this continual dishing of the latter-day whigs.

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The third point of comparison was Disraeli’s unrivalled knack of sensing that urban and/or working class electors are open to populist Conservative politics.

Although progressives assume that people should vote progressively, often the people do not and vote against the way progressives think they should.

Disraeli knew this – and Johnson knows this – and this is why both are formidable opponents to progressives, pulling the electoral rugs from beneath the toes of more earnest progressive sorts.

And one can easily imagine Johnson making his Queen the Empress of India, if he could.

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And the fourth point of comparison is that Disraeli did all this while generally being looked down on by the media and political elite of his day both for his public and non-public life and for his somewhat chaotic lifestyle.

This was/is because of their charisma and their skill with words.

Indeed, both Disraeli and Johnson were/are skilled wordsmiths.

(A ‘skilled wordsmith’ is what a skilled wordsmith calls what a good writer would just call a ‘good writer’.)

Both show that cleverness and (perceived) personality go a long way – even when almost everyone in their political and media worlds regarded them as utter chancers and charlatans.

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Of course: there are many points of contrast.

They had different backgrounds, and did different things and in a different way.

But it is easy to posit differences between any two successful politicians.

It is less easy to to identify things in common.

Disraeli only won one major election outright – while, in a way, Johnson has totted up three – the referendum, the 2019 general election and the elections last week.

And Disraeli’s political legacy was supercharged by the fall-out from the Irish Home Rule Crisis after his death – which also contributed to Conservative political hegemony in the twenty years after his death.

But.

In being willing to opportunistically weaponise an issue to defeat political incumbents, to game the constitution so as to win popular mandates, to appeal to populism, and in his defiance of political and media censure, Johnson to me seems similar to Disraeli.

If this is a sound comparison, then radicals and progressives will have a hard job competing for votes.

A Disraeli is the last sort of Conservative leader that radicals and progressives should ever want to be against.

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That was the County Court Judgment that was – and why everyone is entitled to a civil justice system that works at the speed it worked for Boris Johnson

13th May 2021

This time yesterday Boris Johnson had a County Court Judgment (CCJ) against him that had been entered back in October 2020.

Like anyone with a contested CCJ he faced the irksome process of applying to the court to set the judgment aside and, if the claim was ill-made, striking out the claim.

The application process can take weeks or months for normal defendants in this predicament – and Johnson faced having to also explain his delay in contesting the case.

And now: it is reported that the CCJ is no more.

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That is extraordinarily fast for the civil justice system.

It would seem that it may be that an application was not even needed – and the courts set aside the claim and struck out the claim by their own motion.

The claimant has wrongly made, it seems, a defamation claim in the wrong court and in the wrong manner.

As such, the court can act without reference to the parties and end the claim there and then.

But.

For the rest of us the civil justice system is nowhere near as prompt.

Claimants and defendants can wait years for a hearing date.

Those with wrongful CCJs can suffer for months until the court gets round to hearing an application for the CCJ to be set aside.

There is nothing wrong whatsoever with the courts acting so swiftly to set aside the CCJ entered against Johnson.

What is wrong is that the rest of us do not get the benefit of civil justice at this same commendable speed.

 

The County Court Judgment against Boris Johnson – an explainer

12th May 2021

[This post now has an Addendum]

Today’s Private Eye revealed that there is a county court judgment (CCJ) against Boris Johnson.

What can be worked out from this information?

First, it appears that it is a judgment against Johnson as a private individual, as the legal claim was not made against him as prime minister – we know this as this claim process cannot be used against central government entities.

Also note that it does not matter that Johnson’s full name is not used, and that the address is ‘Number 10’ when in fact he lives at Number 11, if those were the details provided by Johnson to the claimant.

Second, the legal claim was made online – we know this because of the court name and because of the ‘MC’ used in the case reference number.

Third, it appears to be a debt claim – as the claim appears to have been for a specified amount.

[UPDATE – this third observation seems not correct – see Addendum below.]

Fourth, it appears that the CCJ is a so-called ‘default judgment’ – this is a judgment that are entered against defendants if they either do not acknowledge the claim or do not defend the claim in time.

That it is a default judgment is suggested by the claim not having been allocated to an actual county court.

On the assumption that the CCJ is for a default judgment, then there are two likely explanations.

The first explanation is that the claim was not properly or validly served – that Johnson had no idea that there was a claim against him.

The second explanation is that the claim was properly and validly served but that, for some reason, the claim was not dealt with properly.

A default judgment is not directly about the merits of a claim – it is a procedural device which has the effect of making defendants take a claim seriously.

If a claim comes in and is, say, ignored then a default judgment will be entered.

Given the sheer amount of correspondence that is received in Downing Street, it is perhaps understandable that occasionally items are missed.

That said, for an October 2020 CCJ to be revealed in May 2021 indicates that:

(a) any final demand or letter before claim was missed/ignored;  

(b) the claim form was either not served or was missed/ignored; and

(c) a copy of the CCJ was missed/ignored.

What a default judgment does not necessarily indicate is that there were insufficient funds – for a CCJ can still be headed off even when a claim form is served as long as the defendant reacts promptly.

Therefore what the CCJ speaks to is not Johnson’s impecunity (at least not directly) but to Johnson’s disorganisation.

Somehow, someway it appears that Johnson (or his office) missed or did not respond to a final demand/letter before claim, a claim form and (most strikingly) the actual judgment and court order.

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So what can Johnson do now?

He can seek to apply to the court to have the CCJ set aside.

But here he may face problems.

He can have the judgment set aside as of right if he did not actually receive the claim form.

But if the claim form was validly served then (in general terms), he can only have the judgment set aside at the discretion of a judge.

For a judge to exercise this discretion in Johnson’s favour he has (again in general terms) to show two things.

First, he would need to show that there was a defence to the claim – that he did not actually owe the money.

Second, he would also need to show that he had acted promptly – and here the calendar is against him.

Waiting until May to apply to have an October judgment set aside will not be an easy thing to explain to a judge – and one can imagine many judges being unimpressed by the delay, regardless of the merits.

*

Downing Street has now provided a statement.

From this statement it can be inferred that the claim was indeed validly served – else that would be the basis for the application and not the basis given.

Instead, the statement uses standard wording which goes to the exercise of a judge’s discretion.

(One suspects that the wording of the Number 10 statement was provided by a lawyer.)

Perhaps the claim was a prank – though it can be a quite serious and potentially criminal matter to issue a false legal claim.

There seems to be off-the-record briefing to political reporters saying that the claim was not ‘genuine’ – but even if this is the case, there was still a claim form and a CCJ missed by Downing Street and/or Johnson.

The fact that the claim may not have been well-made does not take away from the evident disorganisation which meant that a claim was served on and a CCJ received by Johnson and nothing appears to have been done about it.

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It cannot be assumed that a court will set a CCJ aside even if the claim is not ‘genuine’, if there has been too much delay.

Courts are increasingly unwilling to give any relief from sanctions in civil cases – and a default judgment is a sanction for non-compliance. 

And there is, of course, a recent example of a civil court being unimpressed with a (former) government minister who did not comply with the civil procedure rules: Andrew Mitchell v News Group Newspapers Ltd.

In that case, Mitchell’s legal team did not get around to serving a costs budget in time – a delay which cost Mitchell about £500,000 – some thousand times more than this CCJ.

A court may be similarly unwilling to give Johnson a relief from this sanction.

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MORAL

Always, always deal with legal correspondence quickly – for if this can happen to the prime minister, it can happen to you.

**

ADDENDUM – 13th May 2021

A report in the Daily Mail now provides detail on the claim – the piece is written by an experienced legal/courts reporter.

It appears that the claim is not for a debt – even though it is for a specific amount.

If the claim was brought on the basis and in the way described, it is likely that the court will set aside the judgment and strike out the claim.

The only problem would be delay – and although anyone who has appeared before county court judges can imagine a judge refusing such an application – delay will probably not be fatal to Johnson’s application in the reported circumstances.

 

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This illiberal Queen’s Speech is the next step for authoritarian populism after Brexit

11th May 2021

Well, that was quite the Queen’s Speech.

A legislative programme geared to make a certain sort of person grin and clap and cheer about ‘owning the libs’.

But it is not just about mere superficialities – it is in substance a multi-pronged attack our liberties.

The prime minister is not only taking back control of when there will be general elections, the government is making it harder for people to vote.

The government is also making it harder for government decisions to be challenged in court, and it is making it harder for anyone to protest about any of this.

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Of course: this is not a surprise.

Five years ago, senior members of the governing party affected to want to give effect to the ‘will of the people’.

But, as is often the case with authoritarian populists, the supposed mandate of the people was only ever a convenient rhetorical device for ever-greater central control.

And the sorry state of our politics means that the government will probably get away with this.

There may be opposition in the house of lords – and some measures may be open to legal challenge.

Yet, even with the few remaining checks and balances in out constitutional arrangements – this is what the government does as the next step after ‘taking back control’.

The impression is that Brexit was not about liberation, but about creating a political culture where the opposite of liberation – imposed authority – became more entrenched.

Our post-Brexit polity is now looking very dismal and depressing indeed.

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Defenders of the Union should argue their case on the merits, rather than hide behind technical legalistic points

10th May 2021

Those who are opposed to a further independence referendum for Scotland are making the same mistakes as Remainers in the Brexit debates.

On Twitter and social media generally – and in mainstream media – those opposed to a referendum (and thereby to independence) are taking the following techincal points:

– that the last referendum was supposed to be ‘once in a generation or lifetime’

– that there is no majority for the Scottish National Party in the Scottish parliament

– that enabling legislation is outside the legislative competence of the Scottish parliament

and so on.

As a veteran of similar debates over Brexit, these technical – almost pedantic – contentions seem familiar.

There were those who argued that the Brexit referendum had no political purchase because it was ‘advisory’.

There were others who – until quite late in the Brexit process – denied that Article 50 had actually been triggered and sought to make legal challenges on this basis.

The feature of these positions is that they said nothing about the merits – or otherwise – of Brexit.

And similarly the pedantic legalistic objections to a further independence referendum for Scotland also say nothing about the merits of either a referendum or independence.

Indeed, each time one of these pedantic legalistic contentions is made, an opportunity is lost to make a case on the merits of the Union.

As I can aver as a pedantic legal commentator, few if any voters are influenced in their vote by pedantic legalistic points.

The impression given by reliance on such contentions is that they are substitutes for arguments on the merits.

A confident supporter of the Union should say about a referendum ‘bring it on – and let me show you the merits of the Union’ – rather than trying to evade or avoid a referendum on technicalities.

That is if there is a case for the Union on the merits.

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The Sunday after the elections before – and what, if anything, is the significance of the results

9th May 2021

Party support comes and goes.

It was not too long ago that an electorate very similar to the current one returned a hung parliament.

It was also not too long ago that the Conservatives had consistently failed to get an overall majority from 1997 to 2015.

And now the conventional wisdom is that the Conservatives are now so dominant that they will not easily be displaced.

That populist Conservatism from time to time does well is not unusual – like Benjamin Disraeli, Boris Johnson irks the liberals and progressives and attracts political support from those who political scientists tell us should be voting for the Left.

But.

If it is now the case that, given our electoral and parliamentary system, there is no viable alternative national government then that would be significant.

It it becomes politically impossible for any one opposition party to form an overall majority then this means either the Conservatives will continue to dominate Westminster or the opposition parties have to work together rather than compete with each other.

For the growing Green party (for which I voted, finally at fifty aligning my voting preference with my surname), this cross-party approach should come easily – as it does for Green parties elsewhere in Europe.

For the Liberal Democrats, however, perhaps the last thing they would want is the experience of coalition – for it was participating in the last coalition that seems to have effectively to have destroyed the credibility of the Liberal Democrats.

And for the Labour Party, it would seem that they are more than most parties already a coalition, though one which appears to be at the beginning of a civil war.

Our constitutional and electoral arrangements, therefore, make it difficult to see how the current governing party can be dislodged.

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But.

As I averred in my quick and short post on Friday, there are two liberal points to make about the recent elections.

First, a decline in tribal partisan voting is a good thing – and people who have changed their vote once can change it again.

And second, the impact of regionalism is stronger now than for any time maybe since world war two.

Regional mayors now have followings and power bases in a way that Joseph Chamberlain and Herbert Morrison the other politicians whose power bases were in the regions would recognise.

Regional power bases are as much of a practical check and a balance to central government excess as much as the judiciary and the legislature, if not more so.

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Just a final note about the unexpected legacy of Tony Blair and his governments in all this.

The Good Friday Agreement and Scottish and Welsh devolution and the first steps towards English regionalism unintentionally provided an extraordinary matrix for post-Brexit politics to play out in.

There is a non-trivial chance that both Scotland and Northern Ireland may leave the Union, not only because of Brexit but also because of policies and changes made a decade or so before in a different context.

Those changes, to a large extent, were intended by many at the time to strengthen the Union – as they may well have done, had it not been for Brexit.

But the unexpected addition of Brexit as an active agent may have the opposite effect to that first intended.

It is never easy to make solid forecasts about politics and constitutional affairs – the significance of the elections last week may seem very different in a few years or they may completely forgotten.

But there is a possibility, if not a probability, that the prospect of continued Conservative dominance will have an equal and opposite political and constitutional reaction.

And one day in hindsight, that reaction will no doubt be seen as having been inevitable all along.

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The mandate for a Scottish independence referendum

8th May 2021

During the Brexit political process – and especially during the (much-missed) hung parliament of 2017-2019 – one of the arguments for Brexit to take place without a further referendum was that if one added together the votes for the Conservatives and the United Kingdom Independence Party and the Democratic Unionist Party (or added up the parliamentary seats for the Conservatives and the DUP), one had a majority for Brexit without any further referendum.

In essence: it did not matter whether the Conservatives were a minority either in terms of the popular vote or parliamentary seats, there was still a mandate if you added parties together.

Now, as the Scottish National Party appears not to have an overall majority in the Scottish Parliament, there are those who contend that the lack of that majority means that there is no mandate for an independence referendum.

However: adding the SNP and Scottish Green seats together will give a majority, as both parties campaigned expressly for an independence referendum.

And, of course, had the anti-referendum parties formed a majority in the Scottish Parliament then those opposed to an independence referendum would have averred that this was a mandate for no referendum.

Consistency may be the hobgoblin of little minds, as someone once said, but it appears to me that if one accepts that the 2017-19 hung parliament was entitled to proceed with Brexit without a further referendum, even though no party had an overall majority of either seats or the popular vote, then the SNP and Scottish Greens together are entitled to do the same with an independence referendum.

There are legal issues – including (adopting a Wednesday Addams smile) the prospect of a hard-fought constitutional case at the supreme court.

And there are practical policy issues, as the demands of the ongoing pandemic mean that there are more urgent policy proposals than an independence referendum.

But on the issue of mandate, it does not matter that the mandate for an independence referendum is formed by an aggregate of parties, just as it did not for Brexit in 2017-19.

The political argument now should be on the merits of independence, rather than on the issue of a mandate for a referendum.

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Illiberal times, liberal times

7th May 2021

Eighteen month after the general election result, there appears to have been another emphatic election result in favour of our illiberal government.

The results from Hartlepool and elsewhere indicate that many in the electorate – a significant amount – are quite at ease with the current governing party.

There has not been a massive ‘loss aversion’ in respect of Brexit – and not has there been any sizeable revolt against the government’s mishandling of the coronavirus pandemic.

It anything, the governing party is even more entrenched than ever.

But.

The same set of results also show that there is political volatility – a shunning of tribal political labels.

There are also indications that localism – for example the popularity of certain English mayors – is stronger than national political (tribal) loyalties.

And, of course, political support that is easily gained can also be easily lost.

So today’s electoral results are not brilliant from a liberal or progressive perspective – but also not an absolute disaster.

Liberalism and constitutionalism may not now be in political fashion, but they have not been utterly vanquished either.

 

 

 

Liz Cheney’s important statement about constitutionalism and politics

6th May 2021

From time to time an utterance by a politician becomes more important than the here-and-now of practical politics.

Such an utterance is an opinion piece in the Washington Post by the conservative congresswoman Liz Cheney.

This blog is written from a liberal perspective, and so there would normally be little if anything that this blog would politically commend about Cheney’s various policy positions.

But this is also a constitutionalist blog, and what Cheney says is spot-on – and it needs to be heard and understood by conservatives in the United States and elsewhere.

Cheney avers:

‘Trump is seeking to unravel critical elements of our constitutional structure that make democracy work — confidence in the result of elections and the rule of law. No other American president has ever done this. The Republican Party is at a turning point, and Republicans must decide whether we are going to choose truth and fidelity to the Constitution.’

She continues:

‘I am a conservative Republican, and the most conservative of conservative values is reverence for the rule of law. Each of us swears an oath before God to uphold our Constitution. The electoral college has spoken. More than 60 state and federal courts, including multiple Trump-appointed judges, have rejected the former president’s arguments, and refused to overturn election results. That is the rule of law; that is our constitutional system for resolving claims of election fraud.

‘The question before us now is whether we will join Trump’s crusade to delegitimize and undo the legal outcome of the 2020 election, with all the consequences that might have.’

And concludes:

‘…if Republicans choose to abandon the rule of law and join Trump’s crusade to undermine the foundation of our democracy and reverse the legal outcome of the last election.

 

‘History is watching. Our children are watching. We must be brave enough to defend the basic principles that underpin and protect our freedom and our democratic process. I am committed to doing that, no matter what the short-term political consequences might be.’

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As this blog has set out before, constitutionalism is about there being constitutional principles that are distinct from and more important than political expediency.

The moment of truth for a constitutionalist is when one sees a distinction between the integrity of the constitution and political advantage and then sides with the constitution.

Constitutionalism is thereby, in this way, about choice.

It is easy – as some fogeys do – to say the words of constitutionalism: blah blah common law rights blah blah Magna Carta blah blah freedom under the law.

It is quite another to elevate constitutional principles above party and partisan advantage in a given practical situation – to say that a course of action should not be taken because it would violate constitutional norms.

One of the more unfortunate features of the authoritarian populist nationalism (and there are other words for it) that has been dominant recently in the United Kingdom, the United States and elsewhere recently, is that there has been no constitutional self-restraint.

Cheney’s article is a reminder that conservatives – as well as liberals and progressives – can take constitutionalism seriously too.

Perhaps the Republican Party will ignore this principled stand – and carry on with its frenzy of Trumpism.

But if that frenzy ever does come to an end, it will be because of warnings such as this from Cheney.

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