7th January 2022
One of the themes of this blog is that formal codified constitutions are of less practical importance than a sense of constitutionalism.
By constitutionalism, I mean the view that there are certain rules and principles about a polity that have a greater priority than partisan expediency or personal ambition.
The polity of the United Kingdom may not have a codified constitution – but it did have, at least until fairly recently, a sense of constitutionalism.
It was what the great constitutional historian Peter Hennessy has dubbed as the ‘Good Chap theory of government’ – a shared understanding that things would not be pushed too far, and that there were self-denial ordinances for those with certain political powers.
In the United States – where there is a codified constitution – they are suffering from a move away from constitutionalism and a shift towards hyper-partisanship.
An illustration of this is this worrying photograph, from the first anniversary of the attempted insurrection:
At the moment of silence for the Capitol Police officers who died, there were only two Republicans who showed up.
Rep. Lynn Cheney. And her father. The 80 year old former Vice President.
An extraordinary image of where this country’s politics are right now. pic.twitter.com/IJ2YS2y2yN
— Chris Murphy 🟧 (@ChrisMurphyCT) January 6, 2022
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Once constitutionalism fails, then it does not matter what you have written in constitutional codes, your polity is in trouble.
(This is why I sometimes say constitutional law should be boring – for constitutional law provides the shared parameters of everyday political action, and if those parameters are continually contested then your political system is not a happy place.)
The responses of some government supporters to the acquittal of the Colston Four indicate a concerning lack of constitutionalism.
One member of parliament – a member of parliament! – even went as far as saying that ‘if the jury is a barrier to ensuring they are punished then that needs to be addressed.’
Wow.
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As I averred in a couple of pieces yesterday – here and over at Prospect – the true constitutional significance of juries is not so much about the decions that they make – but the decisions that they prevent others from making.
In essence: a jury stops a person from being convicted and punished just on the say-so of the prosecuting state.
A person may be arrested, charged and prosecuted – but if they maintain their innocence, they cannot be convicted and punished for a serious offence without the intervention of a jury.
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Of course, the Conservative member of parliament quoted above was speaking without thinking.
But that is the problem: the lack of thought – and, in particular, the lack of constitutionalism.
That politician was not alone.
A former cabinet minister said much the same.
And even the former lord chancellor Robert Buckland – who refused to resign when others did when the government proposed to use primary legislation to allow it break the law – spoke of his concerns.
This loud frustration of government supporters is, as I averred yesterday, the sweet sound of a working constitution.
But.
Their utterances also bear a more worrying meaning.
For what they are saying also indicates a collapse in constitutionalism.
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We keep drifting towards outright hyper-partisanship – Withnail and I’s arena of the unwell.
The current government routinely seeks to frustrate or remove any check or balance to its executive might, to the partisan claps and cheers of those who should but do not know better.
Some may giggle and chortle at ‘owning the libs’ .
But, in reality, there is no ownership: no sense of responsibility or care for what is possessed and can be passed on.
And so the most urgent constitutional challenge for the United Kingdom is not about codification but about culture.
How can we make politicians (and the media) care about constitutionalism again?
Or has it been lost altogether?
Perhaps it has.
Brace brace.
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As the behaviour of the Johnsonians gets worse and as their supporters get more intense in their hatreds, it is good to see you retain your judgement and your ability to write so well. Thank you. Good behaviour is a foundation for so much we take for granted but is rarely as robust as we think. We need to be constantly reminded of that.
I echo this comment.
I want to put on record my agreement with that statement.
An interesting aspect is the extent to which these rules live in peoples’ heads, and the extent to which we believe there is a shared understanding of the rules.
What comments like the above reveal is the gap between people. One could argue that “remainer” distaste with brexit is also about how it was won- by a contravention of what they believed the rules to be (eg around truthiness of facts, or blaming others for internal problems)
It’s not the gap, so much as the realisation of the gap that causes the shift towards rule of law breakdown. Say you’re a person that agrees with the MP, or someone that believes lying to the standards commissioner is an allowable oversight, but can’t say that in public for fear of being too much in an “out group”. Now you have seen them say it in public you think there must be a group that supports you, so you are more likely to take your actions in public as well.
Perhaps the way to “make” people care is for the broad electoral coalitions to reveal themselves as disparate and break down, as could be happening to the conservatives via by-elections.
Then you’re left hoping that the executive-power project isn’t large enough to win an fptp election.
Accepting that codified constitutions are not a cure-all, the process of codifying, the conversations around what we want the codification to do and say, might be a useful counter to the decline of constitutionalism.
Perhaps also worth highlighting what fills the gap left by declining constitutionalism- how power is distributed- which is authoritarianism ie power is not distributed, it is concentrated.
Thank you for the continued focus on British constitutionalism and the threats to its relevance in these difficult times. I am currently reading Shashi Tharoor’s new book The Struggle for India’s Soul. It covers the same ground you see here in the UK. The similarities between the UK and Modi’s India is remarkable. Quite a read to see the history and mechanisms used by populist politicians – worldwide?
My first thought was ‘Noblesse Oblige’, not the amusing little book but the concept that if you were a top dog you were supposed to behave yourself. Probably a rose tinted view that died out after hefty death duties and the shift from agriculture to industry. During this time we were asked to believe our politicians also subscribed to the Noble Obligation – well, a few did. In its turn industry came and went and the top dogs moved into finance and media.
During this change we have seen a rise in the number and profile of lawyers in business and in politics. The ethic seems to have moved from ‘what is my obligation’ to ‘what can I get away with’ and ‘can I get the evidence excluded’. Which is fair enough if one is a professional lawyer hired as a professional lawyer, that is what is expected.
Herein lies the problem I think. That legalistic and amoral way of thinking and training for politicians has missed out the ‘obligation’ bit. We missed out the opportunity to compel the necessary training and enforcement of obligation and are left with a free-for-all. Possibly because we gave politician/lawyers the benefit of the doubt – they would be ‘good chaps’.
Nowadays it is perfectly OK to forget about some silly old phone with inconvenient messages on it. What Parliament needs is a hefty wooden block and a hammer – for crushing untruthful fingers one at a time. You can carve the letters ‘constitution’ on the sides of the block if you wish. The block/hammer does not lead directly to a sense of obligation but the screams from a few applications will.
“In essence: a jury stops a person from being convicted and punished just on the say-so of the prosecuting state…”
The above is necessary but not sufficient.
Section 2.7 of Code of Crown Prosecutors
https://www.cps.gov.uk/publication/code-crown-prosecutors
brings ( in my view) sufficiency safeguards to ensure that The State cannot politically prosecute just because it can , viz:
“Neither must they (Crown Prosecutors as the only legal entity allowed to bring prodections forward)* be motivated by political considerations.”
* my words in brackets
What is the safeguard there? Let alone safeguards, plural?
“The Crown Prosecution Service (CPS) prosecutes criminal cases that have been investigated by the police and other investigative organisations in England and Wales. The CPS is independent, and we make our decisions independently of the police and government.”
This is from the official CPS website introduction.
Ok you can take the view that the CPS makes its decisions independently or not of the police and/or government – my own experience is that it is independent.
The code of conduct of Crown Prosecutors is pretty explicit ( section 2.7) that it ( Crown Prosecutors) cannot take into account political considerations when it comes to making a decision on whether to prosecute or not.
Thus you’ve effectively got two safeguards:
1. The government can’t just prosecute anybody without CPS authorisation – indeed the government can’t prosecute full stop- that is up to the Crown via CPS
2. The CPS can’t ( apparently) take into account political motivations to prosecute according to their own code .
Maybe there ought to be stricter safeguards? Else, it would be good to see evidence of a politically motivated prosecution ? Interesting.
Those are policies, not safeguards. They are good policies, as policies go. But like all good policies, they can come and go.
As a safeguard, we are in chocolate fireguard territory.
A safeguard might give a simply enforceable legal right to those policies. Perhaps you can devise such an enforceable right, and get it enacted.
Jury trial is such a safeguard. It is widely accepted, it mostly works. Let’s keep it, until someone actually comes up with an alternative safeguard of similar strength.
You might do well to take your argument to Justice.org, viz:
“However, in adversarial legal systems like that of England and Wales, which are based on scepticism of state power, jury trial is one of the primary safeguards for trial fairness as well as other fundamental rights. It has traditionally been important in protecting defendants from oppressive or politically motivated prosecutions…”
https://justice.org.uk/jury-trial-serious-fraud/
What’s attractive about the above is that in essentially, one paragraph, it states that a jury acts as a bulwark against state power and is a primary safeguard for trial fairness , especially from politically motivated or oppressive prosecutions.
Whilst I’ve some sympathy with your distinction between ‘ policy’ and ‘safeguarding’ I’m content that Justice.org seems to align closely with my views.
I believe a great deal of the problem is the nature of the extremists who seized power over brexit.
However there is another element. The same party has been in power for too long. When that happens the reining party cannot envisage being on the wrong side of the powers they are seizing. That and a sense of entitlement leads to corruption. This happened at the beginning of Major’s government and to an extent with Blair’s government.
Yes. The Tories have systematically stripped away civil rights over a decade, whittling down legal aid, for example, which was part of our post-war democratic settlement, enabling access to justice for all. It’s been a a co-ordinated and intentional attack on citizens’ rights and freedoms since the Tories took office in 2010. From using statutory instruments – secondary legislation – to dodge accountability in parliament to watering down the Equality Act and scrapping Every Child Matters the day after the Tories took office, to the welfare ‘reforms’, austerity and the Health and Social Care Act. More recently we see the right to protest in jeopardy. Every single policy has removed something from citizens, rather than adding something positive to our lives.
None of this is oversight, stupidity or lack of thinking on the pat of government. It is calculated, intentional, ruthless authoritarianism. Our Human Rights Act is probably about to be scrapped. The Tories regard human rights as inconvenient, ‘red tape’, that, in the words of David Cameron, “Stop us getting things done”. We really must ask what it is they want to get done. Because it isn’t the Human Rights Act that is the problem.
Ideally we would be ruled by intellectually and otherwise honest people whose humility would prevent them taking credit for their selfless service to the system of modifiable rules intended to bore us to greatness. They would probably wear anoraks.
But we have what we have instead.
It mocks the liberal project. It’s quite humiliating. Still, it’s probably best to press on, given the alternatives.
If as some fear, the USA could follow a path to ditatorship, then the UK may follow. There, neither Republican politicians nor their electors wish to be constrained by constitutional checks & balances. Here, the existing Tory party and already some electors think institutions should be changed or demolished. Similar stirrings have been seen in other democracies and it would be good to know from academics if the FPTP systems enable politicians to leverage this popular polarisation. It could explain why certain politicians and parties act so blatantly in their interest rather than their country’s : stir it up, get a slim majority- enough to change the rules and stay in power. The method of Duterte, Modi & Putin?
Just the fact that we then wonder if the polarisation of electorates is another tack by Ultra-liberals to by-pass safeguards only deepens the chasm. But whether the split in the electorates was contrived, or is a natural phenomenon, it is too late now to change institutions to cope with what may be an existential problem of modern democracy. We must defend our systems with what we have and fix them later, if we can. That defence is first for parliament, if there are enough principled Tory members to resist the rule breaking (not at all sure and the photo from the USA is not encouraging) or if the Tories are turfed out in ’24.
The rest of us can militate with education and motivation, but the terraces are not interested in day-to-day politicing. we could all express some empathy, but that does not sell the press/ ad space and anyway you cannot reach across the divide until you can see across it. Which may be another reason for our so-called government not saying where they want to go. They can also put off conflict between their ultra-libs and the red-wallers.
The end of ancient Greek democracy from without was inevitable : each city state only armed & trained a small cohort of electors. It was just a question of time before a nearby king trained his adult male population the same tactics and so with a much larger army (+ 2’ longer spears) got the Greeks to obey him.
The end of the ancient Roman republic from within was not inevitable, but followed stasis of government when the terraces finally longed for a strongman to « sort this problem out » or just « get it done ».
If the current mess does develop into an existential threat to modern democracy, we cannot say that we have not been warned.
To extend your Greek and Roman analogies – are you arguing that the end of our late modern experiment in universal franchise democracy is inevitable as the proles have forgotten to be grateful for universal healthcare, free education and public pensions – while mass entertainment (and two working parent families) has led to the collapse of our social structures?
This way leads to Heinlein’s fascist fantasy of earned citizenship and Starship Troopers (the book, not the film). Or closer to home – the creation of ephemeral Fifth Columnists against whom Brexit supporting columnists can rage.
Or – to put it another techno-economic way – the easy economic growth derived since the 1920s from the introduction of oil and later mass computing has evaporated. To be replaced by nuclear fusion and wind turbines, propelling a quantum computer powered future.
So far, so Sub-Cummings.
This creates an interesting predicament for the government, which is becoming increasingly dependent upon the Left Behinds to maintain its majority. And what will it do about the 40% of the population whose skills will not be needed in an AI powered future?
(There are some parallels with knowledge workers supporting the Democrats in the US).
It’s the flip side of all that Red Wall/Revolt of the Masses dreck peddled by the psephologists, making a virtue out of necessity. Hence the need for external enemies to bind this coalition together.
Economics isn’t destiny – and we still have agency, I would respond, even if those structural factors constrain our choices.
Perhaps FTAs with the US, India and the CPTPP will insulate our economy if the euro does collapse under the weight of its own internal contradictions – as Brexit funding hedge fund managers are keen to predict. (I’m always cautious about guys ‘talking their book’ though.)
No mate. I am not arguing that. Like you though, i grew up in a council flat. If you want to argue what is wrong my cousins it is not their lack of interst in politics which I long considered admirable as it meant brit politics was boring, fo rmuch the same reason as dg argues the constitution should be. Liberté, égalité, fraternité.
However, we live in strange days when our least worst sytem is in danger. What i do charge the proles with and many of the other strata besides is not giving due importance to their vote. I would fight for the right to vote of the lady who did not know which way she would vote on the morn if the referendum. Would that others took the trouble. But we despise what is free, like me cruising through my free education with straight b’s and c’s because i made no effort. Like my brother when first he visited us in france running the tap as we brushed our teeth because he liked the sound of it and water was free in blighty. I have thrown out the idea before that maybe we should have to earn a vote, whether by a gen knowledge test or community service or supporting west ham.
Education is a hard sell when it must compete with free titilation.
As the 25th approaches let us hope it is aye comin yet that man to man the world o’er shall brothers be, for a’ that. But there are some bad basterds out there and if we do not keep watch, we lose.
Another element is the fact that too many people want entertainment rather than substance. This has always been so but is spread far and wide by seductive TV game shows and adverts. People “enjoyed” Trump’s antics and felt the loss of such a “great character”. Who cares if Johnson is lavishishly immoral when he makes us laugh! It is worse than a shame that too many voters choose to be lazy, and mock politics for example, rather than actually start with thinking!
I don’t often completely disagree with you David. But – sorry – here I do.
Let me explain.
The central point about this debate about Colston and the Rule of Law seems to me to be that people are talking past each other because they are talking about the Rule of Law in two different ways.
On the one hand there are those like yourself and The Secret Barrister who say the decision is just the system working as it should and wholly in line with the Rule of Law.
That’s because you are discussing the decision with reference to the dominant conception of the Rule of Law according to the dominant strain of modern Anglo Saxon technical jurisprudence.
By those lights you say the decision is made on the basis of the same law that applies to all and by the same due process that applies to all. Q.E.D. it is simply an application of the Rule of Law. The system working as it should.
And by those lights I agree. You are completely correct.
But
Those who take the other view – politicians, commentators, members of the public – on the other hand are talking in terms of a different conception of the Rule of Law altogether.
And not an eccentric one at that.
But indeed the dominant and much more normal conception of that idea both in common usage and political discourse, political philosophy and legal history.
This is that, as a substantive not merely as a formal matter like cases should be decided alike according to general published rules, and not at the whim of either a despot such as a Stewart monarch or even a jury applying its own conception of right or wrong, case by case.
As the fuller historical (if somewhat sexist formulation) of the concept expresses it: The Rule of Law, not of Men.
From that perspective, the substantive argument is that deciding the fate of controversial statues by mob justice and ex post facto jury lottery is offensive to the Rule of Law in that substantive sense, even if itself sanctioned by law
And that is plainly right. That charge sounds absolutely centrally within that more common and more traditional meaning of that concept.
Now the really controversial bit.
Further that that is so IRRESPECTIVE of whether or not the jury in this in fact decided (we can never know) on the basis of a perverse verdict in defiance of their directions or in accordance with the (rather excellent) published directions of the judge
I am aware I need to justify that last paragraph.
First, perverse verdicts.
These – guilt or not guilty – may be allowed in law. But on this substantive view of the Rule of Law only on the basis that these are meant to be safety valves at the margin, a tolerated exception to the what the substantive conception of the Rule of Law would otherwise criticise or bridle at.
That, after all, is why Henry VIII clauses are criticised. Even when set out if (statue) law. It is pretty much the whole basis of the conditions modern administrative law puts around administrative decision making. Even when the statue giving the discretion does not mention the conditions. It is why Spinning Hugo doesn’t like juries. Even as he rights the law allows them to return perverse verdict, not guilty or guilty
On this substantive and more common conception of the the Rule of Law, to say any decision on a whim the law allows is itself within the Rule of Law is formalistic sophistry, the sort of stuff served up in tax avoidance cases. In fact it is formalistically correct but substantively ridiculous.
Do we really say the recent Rittenhouse decision in the States was an ordinary application of the Rule of Law because it was an outcome of due process by a jury empowered in law to make that decision? Or do we say it is a shocking harbinger of the possible collapse of the Rule of Law in the face of tribal politics in the US? The answer is obvious.
But still, if other perverse verdicts in the UK – Ponting, for example -have not aroused this level of passion in the past and were previously accepted as safety valve exceptions. why not now?
And this takes us to the second possibility – that the jury correctly applied their directions and took their decision accordingly and the issues around that, which really get to the nub of this debate and the reasons for the concerns being voiced now.
Because the answer as to the nature of the problem is the same in each case.
The problem in Colston is precisely that those directions asked the Jury to make a series of value judgements in relation to the defences put forward as to whether the Colston statue was obscene or offensive or whether criminalising pulling it down was a disproportionate fetter on the right of protest on what is now, today, a matter of pressing tribal politics.
That is the reason why what was tolerated or even celebrated in he past is now a matter of such concern.
Consider.
In the (again sadly sexist) hallowed formulation, the strength of the jury system is meant to be that when value judgements in law fall to be made in criminal matters, as they invariably do, there is no one better to make them than ’12 [randomly selected] Good Men and True’ as they may be taken to be representative of the values of the wider community they in a sense represent, such that this is a system that will command confidence in the justice it dispenses, being seen to be impartial to all.
But that’s exactly the point.
On these tribal issues today where we are a Dis-United Kingdom with different ‘values communities’, to use the jargon, that is no longer easy or even possible in these types of cases.
Leading precisely to the result that rather than (in this instance) the fate of controversial statues being decided by consistent principles different juries in different parts of the county will take different views that will be highly controversial not to say offensive in other parts of the country, bringing the whole system into question (and made different types of statues and artworks in different regions, just like in Northern Ireland).
But, I hear some lawyers say, jury’s don’t set legal precedents.
Maybe those lawyers should consider that those voicing those concerns are intelligent enough to know that.
Maybe instead those lawyers should focus on what those others are focussing on, the fact criminal cases can certainly do set factual precedents.
And maybe those lawyers should realise, with the entire political spectrum from Olusoga to Charles Moore already discussing the case in just such terms that maybe, just maybe, this is a remarkable case and just such a precedent.
Another objection would be to say it was always thus. So what care more now. What justice did Black defendants in the American South, for example? Do they for that matter get the same justice as White defendants in the UK, even today? Isn’t this concern just White Privilege now that its own sole prerogative to be judge of others and itself but judge by now other is under threat?
But even if you agree with that – and to quite an extent I do – what we are looking at now is the spread of partisan and identify based politics (on many axes, not just race) to such an extent and at all levels that it is realistic to question, with the example of the US before us, how the system will cope.
Lastly, you touch on partisanship so a few words on that.
First. A concern that modern tribal politics might cause confidence in the jury system and by extension the Rule of Law to break down is not a partisan position, let alone a right wing partisan position. Look at the reaction of progressive opinion to Rittenhouse. It’s an issue that should concern anyone who is concerned about the threats to modern liberal democracy. See, for example, the work of the likes of Anne Applebaum, Edward Luce, Peter Pomerantsev, Tim Snyder and countless other on the retreat of the Western legal liberal order.
Second, blaming ‘opportunistic ministers’ for damaging confidence in the system for voicing these concerns on the other hand is itself opportunistic and partisan.
Yes, I know.
I’m sure if the boot was on the other foot they would be singing quite a different tune.
Yes, I have had my fill of right wing populist tropes about ’ordinary people versus the elite’ narratives so, yes, I don’t deny it is vastly amusing to see ministers prefer judges to juries in this case after all.
Yes, the stench of hypocrisy.
Etc.
And yet.
It is a trite point that tribal politics are growing at all levels of society for all sorts of reasons, so a counter-narrative that it’s all just evil ministers causing the problems is as fatuous at the populist people versus elite narrative – in fact its another species of the self-same populist tribal animal.
If we really want to be non-partisan, honesty compells.
Everything on its merits.
And the fact is, astonishing though it is to say it, in so far as ministers, even (incredibly) the execrable Braverman, are voicing the concern that the decision might – not will, but might – be a worrying harbinger of troubles to come for the legal system dealing with tribal political issues, they are right.
A few weeks ago no one or hardly anyone thought a mob pulling down an objectionable statue in the public realm could not be criminal. Defence Counsel’s arguments were lauded – but lauded precisely because they were imaginative and seen as such. Now all has changed. And the only ones failing to recognise it seem to be the lawyers.