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’.
(Both statements are illustrations of the late Simon Hoggart’s ‘law of the ridiculous reverse’ (see here and here).)
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.
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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.
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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.
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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.
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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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Fantastic read
Thank You.
Yes, a great deal written in the Conservative’s 2019 manifesto was missed in the blizzard of Brexit snow.
Trump may have lost (temporarily?) a platform for his populist causes. However, the work of the Constitution, Democracy and Rights Commission has only just begun in the UK. No surprise that Buckley has focused its early attention where he has, rather than upon ‘increasing’ democracy.
https://paulsthoughts.home.blog/2021/01/15/representing-and-serving-all-the-people-the-trump-johnson-way/
Another review that, if it were conducted in an inclusive, open minded way might attract wide support from those of politics and no politics?
I am all for greater involvement by communities in running their own affairs, effective, long lasting, inclusive socio-economic regeneration without it is impossible, but a high level review, however well intentioned (and this does not sound to be of that nature, at all) will not come up with case studies for consideration by practitioners and communities.
We are, after all, talking about a Government that sees regeneration monies, what little of that there will be, being handed out like sweeties to favoured projects by constituency MPs. Not so much pork barrel as sherbert fountain.
Arguably, in most cases, the least qualified people to be given such budgetary responsibility.
Sobering reading, indeed.
Just a small point: “For the United Kingdom, it has now found itself entirely outside the European Union – including the customs union and the single market…” This applies to Great Britain, but not to Northern Ireland. Maybe this arrangement will also impact the constitution in due course.
Good point – and I will amend accordingly
Great blog, as always. I wouldn’t assume Cummings has gone very far though, just doesn’t actually appear at the door of No 10 anymore.
I can see why no sensible person should say “let us be more complacent”. “Complacency” is clearly a vice, not a virtue. We know from Aristotle that while virtue is in the mean, vices are at the extremes.
However the reason why one should not say “Let us be less vigilant” is different. If we regard “vigilance” as a virtue – and there are good arguments for so doing – then the consequence of being less vigilant is to drift into one of the vices opposed to vigilance, and I think that the relevant vice is complacency. However it is possible to go towards the vice that lies at the opposite extreme from vigilance – as the former and unlamented East German government did when it set up and ran the Stasi. It would doubtless say it was being vigilant.
Vigilance clearly requires us to act to prevent a real danger (for instance money laundering) but to do so in ways that respect the rights of others, including the potential use of money for activities of which one might not just disapprove but plausibly argue were morally wrong. However much a banker or regulator believes that adultery is a mortal sin, it would entirely wrong for them to publish the credit account showing a married individual booking a hotel room to spend a night with a lover.
This is not a criticism of what follows – there is compelling reason to believe that too many people are being complacent.
The parlous state of the courts has finally reached the news today. It seems that essential elements of our public services – health service, courts, local authorities, education – are on the edge of collapse. I would hope that one element that comes out of the current situation is that we have to do these things together, and fund them adequately so they are done properly.
One inevitable event that may have a substantial impact on the constitutional arrangements of the UK within the next decade or two: at some point, our head of state will change for the first time in nearly 70 years. It is impossible to predict what impact that might have in the UK and more widely on the Commonwealth. While continuity has a strong attraction, and the British tradition is to muddle through, I expect there may be a mood to reassess what constitutional arrangements we want for the rest of the 21st century. You could roll into that a reassessment of the union of England with Scotland, Wales, and Northern Ireland.
On a similar timescale, the ratchet on global warming is going to increase, but that is like boiling a frog. My fear is we are already too late to take effective measures to keep the impacts within acceptable bounds.
The Prince of Wales is a mass of contradictions, but, odds on, he will want to advise his Minsters more than his mother does; possibly, try to take back some control of Royal Prerogative and definitely rewrite his job description..
That alone will cause a lot of tension and stress for all involved.
For example, monarchs since King Edward VI, for reasons passing understanding, have retained the title of Fidei Defensor (Defender of the Faith), conferred on Henry VIII by Pope Leo X in recognition for his book entitled Assertio Septem Sacramentorum (Defence of the Seven Sacraments). There is a contention that the book was mostly the work of Sir Thomas More.
The future James III, he has indicated he would take this title, because of negative connotations associated with Charles I and II, has said he would like to be styled the Defender of the Faiths.
He would, of course, become head of the Church of England on acceding to the throne.
I suspect, should such events come to pass that we will miss the thoughtful, informed and erudite comment of Norman St John-Stevas on such matters.
Stevas edited the collected works of the Victorian journalist and politician Walter Bagehot. These 15 volumes, in total, have been labelled Stevas’s “memorial”.
I never thought I would miss the wet, who nicknamed Mrs T, Tina!
I’ve heard that ‘James III’ a lot, but always second hand. What’s the source? I always find it slightly irritating because, while yes, Charles I was executed, his son Charles II was restored to the throne, accepted the idea of constitutional monarchy, and was a fairly culturally significant king (‘the Merry Monarch’).
And it’s not as if James is a better name, is it? James II was deposed.
I am afraid I do not know the source, but, given how the Royal Family routinely communicates with their subjects, I suspect it was sources close to the Palace or similar.
James II was a Roman Catholic when he ascended the throne, but Prince Charles may not do likewise. The law has been amended to allow him to take the throne whilst married to a Roman Catholic, but not as a Roman Catholic, himself.
And Camilla will not, I think, be his Queen, because she is a Roman Catholic.
May be he is sending some deeply subtle signal with his choice of name?
Grima Wormtongue, who spent some years in Russia in the late 1990s, failing to get an airline off the ground, may have left Saruman’s employment for now, but many of those he took into Government, quite often drawn from that point where the Hard Left shakes hands with the Hard Right, are still there.
One wonders how much power and influence they now wield in their master’s absence. Who, for example, has succeeded Cummings as the chair of his Shadow Cabinet of Special Advisers, assuming it still meets?
Historians of the future will wonder how the members of tiny factions on the Hard Left, where it shades into the Hard Right, became centre stage and poisoned our politics.
Keir Starmer has, disturbingly, appointed Claire Ainsley, an ex member of the SWP and Kosovo genocide denier as his chief adviser. Ainsley advocates the philosophy, using the word loosely, of Blue Labour and clearly is a big fan of Global Britain.
How long before the GB brand promoters realise they could not leave the Single Market and Customs Union and make this brand commercially viable?
The new cakeism.
When Claire Fox was ennobled by Boris Johnson, one of her two sponsors when she took up her seat in the Lords was none other than Lord Maurice Glasman, the de facto leader of Blue Labour.
Corbyn and Milne admired the cut of Cummings’ jib. There, but for the Grace of God and so on. And Milne, like Cummings has an utter contempt for our Unwritten Constitution and its checks and balances.
Posh boys know best.
I take it when you talk about “a sustainable trade and cooperation agreement with the European Union” there is a degree of sarcasm therein?
It may or may not prove politically viable (that being your point?), but economically we ain’t seen nothing yet of the negative impacts of Brexit, disguised as they are, for now, by Covid-19.
I would go so far as to suggest that there may be a degree of unpleasantness, if not a degree of violence, if say a car plant closes and some of those made redundant remember their mates celebrating Leave winning in 2016. Odds on those losing their jobs will never get as good a one for years, if ever.
Constitutional law, in such a context, is not going to become dull any time soon.
The Riot Act 2021, anyone?
“For the United Kingdom, it has now found itself entirely outside the European Union – including 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”
The constitutional problem is not that we found ourselves outside the EU five years after that election, but that not one mainstream party in that election reflected what turned out to be the majority view just a year later.
Many of those who voted Leave thought and, after polling day, were re-assured by the likes of Johnson and Gove that we would not, on Brexit, be leaving the Single Market and the Customs Union.
Arguably, the most popular version of Brexit was that desired by the majority of the minority of the electorate, who voted Leave in 2016.
By 6th January 2019, Boris Johnson was claiming “(No Deal) is closest to what people actually voted for.”
He has failed to deliver on both 2016 and 2019.
I do wince at the characterisation of lasting constitutional damage as being ‘exciting’. Just as many children in a playground get ‘excited’ and gather round when a fight breaks out, as we mature into adults, our response to witnessing close up violence no longer fills us with glee and excitement. As we become aware of the real and lasting dangers of physical violence, we no longer get a thrill by witnessing it spontaneously erupt around us. The same, I think, should apply to constitutional vandalism. Should we really be gleefuly excited as our democratic norms and values are attacked by darkly motivated actors? Can we really be excited by dangerous, damaging and reckless attacks on our constitution or the constitutions of other democratic nations? This isn’t some kind of national entertainment to be savoured and enjoyed like a scary film.
Don’t be to hard on yourself. One frustrating thing about quiet, ongoing vigilance is that it’s effects are below the waterline. I wonder how many constitutionally bad ideas are abandoned from the comfort of a civil servant’s office, with not great furore, because the analysis of why it was A Bad Idea was readily available online by the time the case to consider it?
That is what I tell myself too, but I am not convinced