The Executive Power Project

28th February 2020

A blog, like Winston Churchill’s puddings, should have a theme.

Otherwise there is the risk that a blog drifts or (worse or better, depending on one’s view) is not updated at all.

This blog will now, I think, have two themes.

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The first is a detailed – almost forensic – look at key documents relating to law and policy.

This is because independent blogging (with the ability to freely link to sources, non-irksome comments, and with no word counts) is a natural medium for such exercises.

And I have started towards this by identifying two key Brexit texts which will be examined closely in post to come (to which you can add a third and fourth, the United Kingdom’s Command Paper on the upcoming negotiations and this speech by Michel Barnier).

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The second is what I will call (with affectionate mockery of the “Judicial Power Project”) the “Executive Power Project”.

My column at Prospect magazine this month sets out one of my general views on this: that currently there is a period of relative judicial lack-of-activism, and that behind the current “something must be done about the judges” moral panic is nothing more than a turnip-ghost.

The revolt against the judges in the United States and Poland, and the United Kingdom, and elsewhere, is little or nothing to do with actual cases and judgments.

It is instead about removing or discrediting those independent checks and balances which prevent those with executive power from easily getting their way.

As such the attacks on the independent judiciary need to be seen as akin to the attacks on the impartial civil service and and diplomatic service, the free press, public service broadcasting, and those parts of the legislature beyond the executive’s easy grasp.

The one uniting factor in all this is an attempt by those currently with executive power to remove or discredit anything that can counter them.

Another part of this is the invocation of heady snappy legitimising phrases (such as the “Will of the People”, “Taking Back Control”, “Get Brexit Done” and “Restoring Sovereignty”) that are intended to over-ride any opposition or concerns.

Here one is reminded of the words attributed to Madame Roland as she was led to the guillotine, “O Liberté, que de crimes on commet en ton nom!” (O Liberty, how many crimes are committed in thy name!) or Stephen Dedalus’s wry “I fear those big words which make us so unhappy”.

For the authoritarian, phrases and concepts that confer legitimacy (whether leftist, rightist, centrist or anything else) tend not to be the reason for what they do but their excuse and pretext.

And the language of populism suits the authoritarian perfectly: for who can be against the will of the people?

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So, rather than commenting on anything and everything (and thereby nothing in particular), this blog will tend to focus on these two themes.

It may not make much (or any) difference but it seems a good thing to do anyway.

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Thank you for visiting this law and policy blog.

I will be spending less time on Twitter in 2020 as I want to move back into longer-form writing – in particular examining and commenting on key texts and other developments, and looking at attempts by the executive to take power from elsewhere.

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Comments are welcome but pre-moderated, and so comments will not be published if irksome. 

18 thoughts on “The Executive Power Project”

  1. I guess the next few months will indicate how much resistance our political order can muster to this executive overreach and irresponsibility.

    Chris Grey’s latest Brexit blog addresses the topic too.

  2. I like the sound of this – Your analyses and commentaries are always good, but at this time in our democracy, they are even more relevant and important.

  3. The judges have just done the executive a huge favour, giving it cover to can Heathrow expansion without a big political fuss.
    An independent judiciary still has its uses.

  4. “The problem with a revolt against imaginary oppression is that you end up with imaginary freedom.” Fintan O’Toole

  5. I believe that were Seamus Milne now in Number 10, holding the position that Dominic Cummings is today then it is highly likely that Milne would be behaving in exactly the same way.

    Jeremy Corbyn would, of course, be the People’s Prime Minister, if not the People’s Leader and John McDonnell, the People’s Chancellor.

    As an aside, the titles of People’s Chancellor and latterly People’s Leader were conferred by Joseph Goebbels on a certain Adolf Hitler.

    Adolf Hitler’s views on the independence of the judiciary were those of a citizen, he said, in a letter published in a major German newspaper after he took power. He put pen to paper to criticise what he said was a poor sentencing decision by a particular judge.

    In the opinion of Citizen Adolf, the judge had let the miscreant off with too light a sentence, but he was merely expressing a personal feeling about the matter.

    I am sure his personal view, expressed in print in a widely read national daily newspaper, had next to no impact on the future sentencing decisions of Nazi Germany’s independent judiciary.

    I remain of the opinion that Corbyn, Milne et al are not actually opposed to the arbitrary use of power, just those wielding it, if it is someone of whose politics they do not approve or whose ideology or world view they do not share.

    And a People’s Leader, like Corbyn, in exercising arbitrary power does so in the name of the People and in the best interests of the People or otherwise he would not be hailed as the People’s Leader, surely?

    1. The most important feature of good democratic regimes (ie systems of government) is that they have an in-built tendency to executive and legislative rotation (much less so in the judiciary). That mechanism rests upon parties in power naturally suffering a steady weakening of their attractiveness to voters, because governing means creating losers as well a winners and the threat of loss appeals to the risk averse majority typical of settled societies. Meanwhile, oppositions, not facing the same sort of wear and tear try to build credibility as a better alternative.

      Of course all of this tended to happen along party lines. What is new is that new communication technologies and possibly macro societal and -economic developments (ageing, loss of labour bargaining capacity, gentrification, etc) may well have the effect that politcal parties will become obsolete as vehicles for political careers and “pop up” movements may seize the opportunities created by increasingly unpopular incumbent governments. This appears to be happening in proportional representation systems (Macron, the Italian movements). US examples are the rise of independents like Trump and Sanders. In the UK the influence of UKIP and the Leave movements have changed the Conservative Party without destroying it (as Trump and Sanders may well be doing to their adopted parties).

      This may well constitute a watershed, a moment where the political process undergoes an adaptation as important as the introduction of universal voting rights in the earl;y 20th century. That earlier adaptation on the continent was captured by authoritarian and fascist regimes who used democratic mechanisms to eatable essential authoritarian and bureaucratic forms of governance whils sometimes maintaining symbols (voting, parliaments, elements of judicial independence) as tokens of legitimacy. The Asian “miracle” economies were excellent more modern (and cleverer) ways to achieve power autonomy for a relatively small group (but with some meritocratic element within that group, rather than the rule by thugs characteristic of, eg Nazi Germany).

      China appaers to be showing that modern technology makes autocracy more feasible than it has been for quite a while. Hence it is likely that democracy, transparency and institutional quality can decline to suit the demands of governments of the day, in turn enabling them to stretch that “day”.. In the name of the People of course and, probably, without too much resistance.

    2. You’re quite possibly right, John – but Corbyn isn’t there, and likely will never be there. But Johnson is, as is Cummings.

      I’ve heard people liken Alastair Campbell to Cummings – but he was more akin to Ingham and Coulson. Cummings is somethings else, and arguably (because he does have some very dangerous ideas) a greater threat than Milne ever would have been.

      But, given that we are where we are, we must learn from this and do whatever we can as members of the public to try to ensure we don’t ever find ourselves in this place again. One chink of light is that the Party of Opposition and its diminutive cousin seem to have put the Kool Aid aside and we may find ourselves finally with an effective (if crippled) opposition before too long.

  6. An addition to your list of “the impartial civil service and diplomatic service, the free press, public service broadcasting, and those parts of the legislature beyond the executive’s easy grasp”, might be ‘independent expert and scientific advice’.
    Sadly, the civil service is not always perfectly impartial, especially in these politicised times, and I have known them too to ignore scientific advice under political imperatives.

    1. As Sir Humphrey said to Bernard, if I had believed in the essential rightness of every Government policy throughout my Civil Service career then I would by now be a raving lunatic.

      During his career to that point, one Government had nationalised the steel industry, another privatised it then later on it was re-nationalised …

      Tony Benn said he was, as a Secretary of State, pressured into approving one variant of nuclear reactor over another by an unholy alliance of his officials, the trades unions, the industry and many in the scientific community.

      He felt, he said in a speech to the House of Commons, that had he had access to genuinely independent advice, not swayed by vested interest, then he would have chosen the tried and tested model and not the new design everyone was so eager to see built.

      Bernard Ingham, who later knew the mind of Mrs Thatcher sometimes better than she did herself, was for a while Tony Benn’s Press Officer.

      Sir Bernard, as he became, was very much responsible for the failure to achieve an amicable settlement of the trades union recognition dispute at GCHQ.

      Dominic Cummings is becoming very much the lineal descendant of Sir Horace Wilson, Neville Chamberlain’s chief adviser.

      Both Sir Bernard and Sir Horace were civil servants. We should be grateful for the small mercy that Cummings does not, yet, enjoy the same security of tenure of a fully paid up member of the Civil Service.

  7. Another available tactic is to attempt a home run around the end of the law along the lines of ‘Gesundes Volksempfinden’.

    That is, after all, a logical conclusion if you simply relying on intoning “Will of the People” to justify every single thing and dismiss all possible challenges, even where the “People” could patently have no idea they were being asked any such question, let alone the means to express any opinion which might have been taken to resolve specific issues.

    If this sounds so extreme it could never happen here, it may be worth reflecting on what your self of five years ago would have made of even just the headlines of the last year or so.

  8. One of the things that irks me most in the current political environment with regards to Brexit, mentioned in your blog, is the allegedly sacrosanct “will of the people”.

    I won’t open the whole argument, except to say, if you’re going to claim your activities are designed to “reflect the will of the people” at least be honest about what that will was.

    This Government and others clearly define that will as being 17.4m leave votes…..end of.

    there are not many greater threats to our democracy than the dismissal of the votes of 16m.

    The ‘will of the people’ if we are to use that poisonous and deliberately divisive label, was 52%/ 48% not as we have been taught to meekly accept 52%/0% (100%).

    Does the Government have any intention of reflecting that ‘will’ in it’s remaining objectives? As things stand, not on your nelly.

  9. Barnier’s speech is interesting, if I were a gambling man, I would be putting such money as I have firmly on a No Deal outcome – I cannot see how Johnson’s government will agree to the EU’s demands for a level playing field and the associated adjudication of disputes that will arise from breaches of any deal that may be possible.
    Is it a negotiating ploy? No, not at all the UK’s position is a precursor to doing a trade deal with the US.

    1. Graeme

      “the UK’s position is a precursor to doing a trade deal with the US.”

      Have you read the ‘United States-United Kingdom
      Negotiations: Summary of Specific Negotiating Objectives’?

      It’s horrendous for the UK in it’s stated objectives, let alone it’s unstated.

      Whilst it might be argued it’s only a ‘starting point’, a seven-times smaller UK (by nominal GDP) potentially desperate for an Agreement which formed one of the the alleged grand prizes of Brexit, fielding a “relatively inexperienced negotiating” team (NAO) unlikely to be free of political interference, and faced with opponents tasked with putting “America First” doesn’t exactly inspire confidence.

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