19th January 2021
To warn against ‘complacency’ is a loaded statement, for no sensible person ever says ‘let us be more complacent’.
Similarly, no sensible person will say ‘I think we should be less vigilant’.
But even though such warnings can be empty statements, citizens will still tend to drop their political guards.
In the United States, Trump leaves office tomorrow and his presidential term ends by automatic operation of law, and he faces a senate trial on his impeachment.
Trump has also lost access to his preferred social media platforms.
Here in the United Kingdom, the prime minister no longer has the constant push towards extraordinary constitutional and policy behaviour from former aide Dominic Cummings and other former advisors.
And the United Kingdom is now within a sustainable trade and cooperation agreement with the European Union, meaning the legal and policy uncertainty of a ‘no deal’ Brexit was mitigated.
These happenings are such that the temptation for liberals and progressives is to dance like victorious Ewoks and to rejoice as if the thaw has come to Narnia.
And, to certain extent, some bad things have now left the political space.
But, two things.
First, as the tidal wave of what happened in 2016 in both the United States and United Kingdom ebbs, we are left with an amount of constitutional wreckage.
In the United States, for example, there has been a substantial reconfiguration of the judiciary in a conservative and illiberal direction, the effects of which will last at least a generation.
For the United Kingdom, it has now found itself outside the European Union – with Great Britain if not Northern Ireland outside the customs union and the single market – a mere five years or so after the general election in 2015 where every mainstream party was committed to membership.
And as this blog has previously averred (here and here), it will take at least five to ten years before any application of the United Kingdom (or what remains of it) would be considered by the European Union, and it is likely any such application will not be considered for, again, a generation.
Both of these pieces of constitutional wreckage are now part of the order of things and liberals and progressives will have to get used to their existence.
And second, at least in the United Kingdom, there are still four ongoing attacks on constitutionalism – that is on the notion that there are things that those with state power should not do, as those things are contrary to constitutional principles, norms and values.
The first of these attacks is by the executive on the legislature – the ever increasing use of discretionary power and secondary legislation that is neither scrutinised nor supervised by parliament.
The second is the attack by the executive and its media supporters on the judiciary holding the government to account – the constant threats (in England and Wales, if not Scotland and Northern Ireland) to those who exercise the supervisory jurisdiction of the high court.
The third – related to the second – is the attack by the executive on the rights and liberties of citizens – either by the attempts to limit substantive rights under human rights instruments or, by procedural changes or the removal of funding, to render such rights as practically unenforceable.
And the fourth is the attack on the checks and balances generally in the United Kingdom’s constitutional arrangements, from the independence of civil servants, diplomats and government lawyers, to autonomous institutions such as the BBC and universities.
An aspect of this fourth attack is the deliberate placing of certain agents of the state beyond or above the law, such as in respect of war crimes or the actions of those engaged in intelligence.
Few of these ongoing attacks will result in ‘big ticket’ legal cases, where the government provokes and then (one hopes) loses some showdown in court.
These attacks will be quiet but still relentless, and their overall effect will be as significant as any ‘big bang’ constitutional reform.
And it will not be enough to keep pointing out these constitutional trespasses, as until citizens care about such abuses of power, the mere exposure of those abuses is of limited political consequence.
The government will just shrug and commit constitutional trespasses anyway.
With the likes of Trump and Cummings and a ‘no deal Brexit’ out of the everyday political space, constitutional law is certainly going to be less exciting.
And this is to be welcomed, as constitutional law should not be exciting.
Constitutional law should be dull.
It is not a good thing for the parameters of any political system to be constantly tested as part of partisan – or hyper-partisan – political debate.
But even if constitutional law becomes more dull, it will not be any less important.
It is when constitutional law is dull that the government is more likely to get away with things.
And it may not make much political difference for public-spirited donkeys such as this blog to keep tracking constitutional and other law and policy trespasses, but it is important that it is done anyway.
Being vigilant and avoiding complacency when things become dull is more difficult than when there is loud and bombastic excitement.
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