Why those who care for the constitution should oppose the Conservatives at the general election

11th December 2019

If the Conservatives win the general election tomorrow, or continue to govern without an overall majority, then there should be genuine concerns for all who care for the constitution of the United Kingdom.

It was not always like this: for many years the Conservatives were the party of quiet, practical constitutionalism.

The party inspired by Edmund Burke (although himself a Whig); the party of Lord Salisbury and Lord Hailsham and Norman St John Stevas; the party responsible for life peerages, the Police and Criminal Evidence Act (in everyday terms the most important civil liberties legislation ever passed in the United Kingdom), the select committee system.

It is even the Conservative party of all parties that can take the most credit for the European Convention on Human Rights (through David Maxwell-Fyfe) and the Single Market (Lord Cockfield).

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But then something changed.

The change predated the leadership of Boris Johnson and even that of Theresa May.

Under David Cameron and his immediate predecessors, the Conservatives shifted to explicit but hostile ideological positions on constitutional issues complemented by casual disdain.

Cameron, for example, insisted that the United Kingdom should repeal the Human Rights Act as a matter of principle.

When Cameron was faced with a defeat in the House of Lords in respect of a welfare proposal that was then dropped, he threatened to “reform” the upper house.

And when faced with a Speaker of the House of Commons who was not sufficiently obliging to the Conservatives, Cameron and his colleagues sought to get the Speaker replaced.

A pattern began to emerge: strident and populist statements in public and cynical manoeuvring in practice.

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Under Cameron, May and Johnson the Conservatives were not the party any more of Burke, where wise heads would avoid pushing the constitution too far, in case the ship of state capsized.

The combination of Brexit (where the Conservatives persist in pretending that complex problems have easy solutions), the notion that a referendum result trumps parliamentary supremacy, and minority government for all but two years since 2010 have accelerated this anti- constitutionalist trend.

Just to take some examples:

  • Secretaries of State repeatedly misled the House and its committees over the extent and existence of Brexit sector analyses reports;
  • the Conservatives prolonged a parliamentary session over two years, so that there would not be a Queen’s Speech;
  • the Conservatives packed committees with majorities, even though it was a hung parliament, by procedural sleight of hand;
  • the Conservatives repeatedly ignored and did not even participate in votes on opposition motions, and then disregarded the motions passed;
  • the Conservatives sought to make the Article 50 notification without any parliamentary approval whatsoever, and forced litigation to go all the way to the Supreme Court so that parliament could have that approval;
  • the Conservative government became the first administration in parliamentary history to be held to be in contempt of parliament;
  • the Conservatives deliberately broke the pairing convention, in respect of an MP on maternity leave, so that the government could win a vote;
  • the Conservatives government gave serious consideration to blocking a duly passed Bill from obtaining Royal Assent.

There are many more examples one could list.

And all these examples in addition to being the government that sought to impose an unlawful five-week prorogation.

And all that in addition to the current manifesto commitments to limit any checks and balances on the government if elected – the now infamous “page 48“.

So distant has the Conservative party travelled from its Burkean heritage, and so radicalised by Brexit and its experience of minority government, that the party’s approach to constitutionalist issues is indistinguishable from that of any populist nationalist authoritarian party (for more on this see here).

This observation should not be understood to be a partisan point – as set out above the Conservatives had a rich constitutionalist background that can be applauded or at least respected – but the current party are now strangers to that tradition.

The best instance in showing this alienation was the decision of every single Conservative MP to vote for a programme motion providing that the complicated and hugely consequential Brexit withdrawal legislation would have had only a few days to be considered before enactment.

Former Conservative MPs sitting as independents or for other parties voted against it.

But the Conservatives all voted for this complete abdication of their parliamentary responsibilities.

One can point to that vote as the sad moment that showed that the constitutionalist tradition in the Conservative party came to an end.

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If elected to power, the Conservatives will be emboldened by Page 48 and will continue the trash the conventions and practices of the constitution.

And that is why if the Conservatives win the general election tomorrow, or continue to govern without an overall majority, then there should be genuine concerns for all who care for the constitution of the United Kingdom.

**

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Will this period of hung parliaments come to an end, or will it become an age of hung parliaments?

10th December 2019

During every general election in the United Kingdom the assumption of many pundits – and indeed voters – is that one party will win outright.

The view is that a party getting an overall majority is the norm to which there is sometimes an exception.

But looking at United Kingdom politics over the last decade, a hung parliament has been the norm, and an overall majority the exception.

Other than the two fateful years 2015-2017 – where a Conservative majority unleashed an In/Out referendum and the current botched Brexit – there has not been a party with a majority since 2010.

Indeed – in the twenty-three years since 1996, when John Major’s Conservative government lost its majority – the Conservatives have only managed an overall majority for those two years 2015-2017.

In two days time we will discover whether this period of hung parliaments has come to an end – or whether it will continue and perhaps become an age of hung parliaments.

The 2017-2019 parliament was one which especially showed the merits (and problems) of a hung parliament – and the current general election is, in effect, a howl of pain by the Conservatives (or its leader) that they could not get their own way.

Today it is difficult but not impossible to see how the Conservatives can gain the seats required for a substantial majority.

But if that happens, and a five-year term is secured, then the last decade will be seen as a blip.

But if there is yet another hung parliament, as in 2010 and 2017, then the 2015-2017 administration will be the blip.

And if hung parliaments become the norm then that will have profound effects on the nature of party politics and the business of governing.

At the moment, both the Conservatives and Labour parties are led by individuals who are are ill-fitted to lead coalitions, and the Liberal Democrats spend a great deal of time trying to explain away or apologise for their role in the 2010-15 coalition.

Like with the pundits and many voters, the view of the parties themselves is also that getting an overall majority is the norm to which there is sometimes an unfortunate exception.

We will find out shortly whether the parties and the pundits and many votes are right.

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The L word, the F word, and contemporary UK politics

9th December 2019

In a few days there will be a general election in the United Kingdom.

This post is not about the possible election result – that is still uncertain and it may even come down to voting intentions which are as yet not settled.

This post is instead about two words that should have had more impact on the campaign, and current politics generally, but have not.

One word begins with L, the other with F.

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The L word

The first word is “lie”.

Some commentators in the United Kingdom aver that more should be done to confront politicians with their lies.

Peter Oborne, a journalist of immense integrity, has even sought to document and expose each lie of the current prime minister (the estimable website is here).

This is essential work: nothing in this post should be taken to mean that recording each lie is not important.

But it is not enough.

This is because many politicians now do not care about being called a liar, or even be shown to be one.

Such a reaction is a cost of political business for them – and some even relish that they “trigger” such a response as some perverse form of validation.

The ultimate problem is not that many politicians lie.

The ultimate problem is far more worrying and far more difficult to resolve.

The ultimate problem is that many voters want to be lied to.

These voters may pretend otherwise, claiming that they want “honest politicians”.

In reality, such voters just want politicians to say what the voters want to hear.

There is therefore an incentive for politicians to lie.

Until and unless many voters can be made to care about being lied to, every fine and worthy effort in exposing the lies is (at least in the short-term) futile – a public good but not enough to effect immediate change.

There are many political lies: small lies, forgettable lies, lies that take longer to expose than any mortal attention span.

But the biggest lie in the current general election – a lie that may determine the outcome – is “Get Brexit Done”.

Brexit cannot be “done” without years of intense effort and attention.

Entire international relationships have to be rebuilt from scratch; entire areas of law and policy have to be reconstructed; entire social and economic patterns of behaviour have to be re-worked.

And all this in addition to the making of actual decisions about what we want those relationships, laws, policies, and social and economic patterns of behaviour to be.

And all that in turn against the intractable problem of fitting in a Brexit policy within the framework of the relationship between the United Kingdom and Ireland.

Brexit cannot be “got done” by mere exhortation.

It is a lie but a lie many want to believe and cannot be dissuaded from believing by mere arguments, logic or evidence.

And by the time many voters will come to care that they were lied to, Brexit will be too long gone for any voter choice to make much difference.

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The F word

The second word – the F word – I will not type.

It is a word which has lost its traction when it needed to still have traction.

The word describes the 1920s and 1930s manifestation of populist nationalist authoritarianism, a political phenomenon that despite the heady optimism of democratic campaigners has never been too far away.

Complacently, some believed that the thing had gone away with the end of the second world war, or with the transitions to democracy of Spain and Portugal.

The thing, however, is always there.

What happened in the 1920s and 1930s in Germany and Italy and elsewhere was always just one set of manifestations of the thing.

Populist nationalist authoritarianism has more purchase on voters than many conservatives, liberals and socialists realise.

It is the politics of easy answers.

In the United Kingdom there are those in favour of Brexit who routinely trash the (independent) courts, the (independent) civil service and diplomatic service, the universities, the broadcasters, even the supremacy of parliament.

This populist disdain for independent institutions is unhealthy.

The threat of the “will of the people” is used as intimidation.

Coupled with nationalistic rhetoric (on immigration and Brexit generally) and authoritarian hostility to legal checks on government (contempt for human rights), you have all the ingredients of the thing described by the F word.

But if you call this thing by its name, it now has little or no effect.

People will yawn and shrug and pay no real attention.

And because what we have before us is not visually the same as the 1920s and 1930s manifestation of the thing – no uniforms, no goosesteps, and so on – many of those hearing the F word will regard what is now happening as not being an example of the F word at all.

Of course, using the F word is not as important as stopping the thing it describes from taking hold.

 

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Calling politicians – and pundits – liars, and describing the vile populist nationalist authoritarianism that they promote as the F word, is not going to stop them lying or the thing the F word describes.

The words are not enough, and it may be that new words are needed to make old warnings.

And unless voters can be made to care about being lied to by politicians, or about the implications of the populist nationalist authoritarianism (again) being promoted, then there will be little to stop either the politicians or the F word thing.

Making voters care about any of this is the challenge for liberal and progressive politicians (and pundits) in the United Kingdom and elsewhere.

And the biggest challenge is to make enough voters care in time.

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The government “ruling out” extending the transition period

5th November 2019

Here we go again.

The United Kingdom government has announced that, if the Brexit happens on the basis of the current draft withdrawal agreement, then the transition period will not be extended beyond its current expiry of 31 December 2020.

(By way of background, the “transition period” is, in effect, a standstill period, with the UK still being bound by European Union law but outside the EU.)

Here is a tweet from a political reporter:

And here is a tweet from the current trade secretary:

Where do you begin with this?

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Let’s start with the current draft withdrawal agreement.

Article 126 provides for a transition period:

“There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.”

Article 132(1) then provides for how that extension can be extended by agreement:

“Notwithstanding Article 126, the Joint Committee may, before 1 July 2020, adopt a single decision extending the transition period for up to one or two years.

(The “Joint Committee” will be the all-powerful, though potentially non-transparent UK-EU entity that supervises the transition period.)

(EDIT – please note that in the first draft agreement’s protocol on Ireland and Northern Ireland, there was also a further provision which provides for one situation when the UK can make a request for an extension – but this provision was removed from the revised version of the draft agreement:

The United Kingdom, having had regard to progress made towards conclusion of the agreement referred to in Articles 1(4) and 2(1) of this Protocol, may at any time before 1 July 2020 request the extension of the transition period referred to in Article 126 of the Withdrawal Agreement. If the United Kingdom makes such a request, the transition period may be extended in accordance with Article 132 of the Withdrawal Agreement.

You can see that this then referred back to two other provisions.

Article 1(4) of that protocol which provided:

The objective of the Withdrawal Agreement is not to establish a permanent relationship between the Union and the United Kingdom. The provisions of this Protocol are therefore intended to apply only temporarily, taking into account the commitments of the Parties set out in Article 2(1). The provisions of this Protocol shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement

And Article 2(1) of that protocol which provided:

The Union and the United Kingdom shall use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part.  )

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In essence, what all that legal prose provides is that there is a transition period to 31 December 2020, that the transition period can be extended by agreement for one or two years the UK has a specific basis for asking for an extension.

The maximum by which the transition period can be extended until is 31 December 2022.

So both the UK and EU, within the draft agreement itself, contemplate potential extensions.

And both the UK and EU contemplate implicitly that this may not be achieved (this can be inferred by the “best endeavours” provision, which presupposes potential failure by only holding the parties to trying for that outcome, not achieving it).

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There are a couple of crucial legal-procedural points to note.

First, once the UK is out of the EU then Article 50 will cease to apply.

This means that any amendments to the withdrawal agreement will (probably) not be capable of being done with Article 50 as a legal basis.

The draft withdrawal agreement itself at Article 164(5)(d) appears to provide that the Joint Committee cannot amend the withdrawal agreement in respect of several matters, including the length of the transition period.

In other words, the EU may not find it legally easy to agree to amendments to the set transition period(s) once the UK leaves.

There will therefore be, under the current draft agreement, a genuinely hard long-stop date for the transition period of 31 December 2022.

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Second, the date of 31 December 2020 was in the first published draft agreement (of November 2018).

It has remained unchanged, even though an entire year has passed, eating into that envisaged period.

What was, in November 2018, a generous-ish transition period of nearly two years will, come a departure on 31 January 2020, a far tighter period of just eleven months.

There is no reason to believe that the UK is now in a better position to achieve in eleven months what it expected to achieve in nearly two years.

The EU has its own reasons, tied to the budget cycle and the financial settlement, for sticking to the 31 December 2020 (and 2021 and 2022) dates, but the fact remains: the UK has lost over a year for the transition since the publication of the first full draft.

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And now we return to the government “ruling out” an extension.

On a legal(istic) point, once the agreement is executed, it may not be legally possible for the government to fetter its own discretion in respect of applying for an extension.

There is an argument that it is bound to keep its right to request an extension under review, regardless of any policy on requesting extension. 

And if the UK faces a “no deal” Brexit on 31 December 2020 then either parliamentary intervention (another Benn Act) or judicial intervention (to oblige the government to consider exercising its discretion) would be virtually certain.

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But moving on from law and legalism, there is no sensible way the UK government would be able to put in place a full trade agreement in eleven months.

(It has, for example, taken a year for there to be the changes to the Ireland protocol in the current draft.)

There are dozens of areas of trade and policy which will need to be negotiated – to grasp just some of the practical issues which need to be addressed just look at Part Three of the withdrawal agreement.

And those practical issues are in addition to wider agreements on tariffs and other measures.

And any trade agreement, in turn, will need to be ratified by all EU27 states, some including referendums.

All in eleven months?

Getting close to agreement on all these matters by the hard long-stop date of 31 December 2022 is, as they say, ambitious (that is, highly unlikely).

Either the transition period will have to be extended or a “No Deal” Brexit has only been postponed and will now happen on 31 December 2020.

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So what explains the statements from Number 10 and from the trade secretary that, regardless of any circumstance, the transition period will end on 31 December 2020?

The only possible explanations can be those two enduring features of government Brexit policy: ignorance and dishonesty.

A trade deal cannot be agreed by 31 December 2020, and to contend that it can be either means you do not know what you are talking about or you are knowingly misleading the media and the voters.

Over three years after the referendum, the government still has not learned key lessons of Brexit: of being realistic about what can be done, and about being honest about what is possible.

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The wrong lesson from the 2016 renegotiation

4th November 2019

Before the referendum, there was the renegotiation.

This was the renegotiation that was finalised at the European Council in February 2016.

The deal then agreed in principle between the United Kingdom and the other 27 member states of the European Union may not seem important now.

The deal never had effect, as it was rescinded after the referendum result.

The deal did not even feature much in the referendum campaign.

It now seems almost a footnote.

But looking back, with the benefit of perspective (if not hindsight), the deal is a telling prelude of much of what has followed.

Egged on by think tankers, political advisers and pundits, the then prime minister David Cameron sought, among other things, to obtain an emergency brake on EU migration.

He was warned by wise heads that such a thing could not be agreed short of amending the EU treaties.

And that it certainly could not be agreed at a mere European Council meeting.

So it was not: such an objective was impossible, and Cameron failed.

All that could be changed in respect of migration was some minor tinkering with indexation and entitlement to benefits.

Even Cameron, in his recently published memoirs, admits to mistakes about the renegotiation, including the framing of domestic expectations.

And he indeed misled his political and media supporters in what could have been plausibly agreed at that Council meeting.

Demanding things from the EU is easy, getting agreement from the EU is not easy.

Unfortunately, many Brexiters seem to have taken a different message from Cameron’s failure.

Cameron, they aver, did not try hard enough, he was too soft.

In essence, say the Brexiters, he should been louder in insisting on what was described as impossible: it was a failure of political will.

This lack of realism has been carried forward to the current Brexit negotiations.

This is why, when the pushes did not even get to be shoves, the pro-Brexit government has had to accept a withdrawal agreement on terms that suit the EU.

The EU is a creature of law that takes the single market seriously.

And this is why the same problem will arise with any future trade agreement.

Demanding something that cannot be done does not work, even if it is shouted slowly in English.

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Another Brexit day comes and goes – Hallowe’en 2019

31st October 2019

Witches’ Sabbath, Hans Baldung Grein, 1510

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Today the United Kingdom will not be leaving the European Union by automatic operation of law.

The next date on which the UK’s departure is set to happen will now be 31st January 2020, the fourth such departure date.

So familiar are we now with Brexit days coming and going there may perhaps be a blithe expectation that the UK will stay in the EU again after the next supposed departure date.

This expectation may be complacent.

There is a form of ratchet effect with the successive exit dates.

The UK parliament has now agreed the current withdrawal agreement in principle.

And the EU will, it seems, be glad to be rid of the Brexit problem, if not rid of the UK.

With one more heave, so to speak, the UK may well be departing the EU in January.

Nobody should assume the UK will stay in the EU after 31st January 2020.

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But.

The UK government has now twice loudly declared that Brexit would happen on specific dates – 29th March and 31st October.

There is endless footage of successive prime ministers insisting that successive departure dates are absolute and will be kept. 

It is difficult to see how anyone will take the government seriously if it now insists loudly that Brexit will definitely happen on 31st January 2020.

The UK government has already lost trust in its dealings on Brexit, and it is now losing its credibility with its threats.

(Of course, some wags will say that the UK government never had credibility in the first place; but it was entirely credible that, but for the Benn Act and the defeat on the Withdrawal Agreement Bill programme motion, the UK would be leaving the EU this evening.)

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Hallowe’en is nowadays a festival where once scary things are treated as not at all scary.

And so it is perhaps fitting that today is when the UK government’s scary (and irresponsible) approach to Brexit, of demanding that an exit date be kept in all circumstances, is shown to have not worked.

This does not make the prospect of an actual departure, either with a deal or without a deal, on 31st January less of a prospect.

That remains a real possibility, and it is now the default position.

What has been removed, however, is the ability of a government under the current or other prime minister to use a departure date as a rhetorical device to frighten others into compliance.

Nobody will believe them.

The current prime minister famously said that he would rather “die in a ditch” than for the UK not to leave the EU today.

And now such ditches and ditchcraft seem as unthreatening as depictions of witches and witchcraft at a children’s Hallowe’en party.

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Brexit and the general election

30th October 2019

An Election Entertainment by William Hogarth 1755

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The United Kingdom is not leaving the European Union tomorrow, by automatic operation of law or otherwise.

The United Kingdom will be having a general election instead, on 12 December 2019 (assuming the current Bill before parliament is enacted).

There is now an Article 50 extension in place until 31 January 2020, although the United Kingdom can depart earlier if the withdrawal agreement is concluded.

What can those with an interest in the law and policy aspects of Brexit make of this general election?

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Firstly, it shows that the priority for the current government is not to “get Brexit done”.

The government had recently obtained a second reading from Members of Parliament for its Withdrawal Agreement Bill.

This was a significant moment, as it meant that the House of Commons, for the first time since the 2016 referendum, had voted positively in respect of Brexit.

Until then there had been a majority for avoiding No Deal but not for any positive version of a Deal.

A Withdrawal Agreement Bill given a second reading is more likely than not to proceed to a third reading, although there would no doubt have been amendments.

A reasonable period of time would have been needed for proper scrutiny, say of about a month or so.

With a fair parliamentary wind, all the stages of the Bill could have been completed by, say, mid-December.

In other words, there could realistically have been a Withdrawal Agreement Act in place by the date of the general election.

But this government, which supposedly wants to “get Brexit done”, has chosen to have a general election instead, and so will lose valuable weeks in which the Bill could have been scrutinised and Brexit achieved.

This demonstrates that the current government’s priority cannot be to “get Brexit done”.

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Second, it means the end of the parliament elected in 2017.

This will be a shame, as it has been a parliament that has become unafraid to stand up to the executive and feisty in its independence.

The people may have voted for Brexit in 2016 but the people also voted in 2017 for Brexit to be delivered by means of a hung parliament.

Both were, in their ways, the “will of the people”.

And if the contention is that the people somehow got their vote wrong in 2017 and should have returned a parliament with an overall majority, then one can also contend that their 2016 vote should be revisited too.

Nobody can predict the result of the next general election, but it would appear that many of the strongly independent elements (and individuals) in this current parliament will not be in place.

The 2017-19 parliament will be missed.

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And third, it is probably sensible that there is now a general election, despite the points made above.

The 2017-19 parliament had gone as far as it could go.

The current parliament may be commendably irreverent, but it is not in a position to do the one thing which is now required with Brexit, regardless of one’s perspective on its merits.

The current parliament cannot address the fundamental problem of Brexit: that is, whether the current Deal is the appropriate means of giving effect to the 2016 mandate, or whether that mandate needs revisiting?

And by implication: does there need to be a referendum, to confirm (or reaffirm) either/or the 2016 mandate and the Deal?

The MPs elected in 2017 are not in the position to ask this question let alone answer it, as they are trapped by their 2017 election promises.

There are not the numbers for a referendum – and there are not the numbers for anything other than support the current Deal on offer.

The 2017-19 parliament was exactly what was needed following the 52:48 referendum result – forcing politicians to compromise and work with other parties.

But a new parliament is needed to look at Brexit afresh and ask if the current Deal is the best way forward.

The December general election result may be a Conservative majority, or there may be a majority for parties that support a further referendum in some form (or even straight revocation).

And for Remainers, a general election is a risk – but a risk to be set aside the near-certainty that the current House of Commons which has passed the current Withdrawal Agreement Bill in principle will eventually pass it overall.

The December election in other words is the Remainers’ last chance.

That the current government even wants to give Remainers this opportunity is rather odd.

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The 128 chilling words in the Scottish case

8th October 2019

At paragraph 43 of the Scottish court judgment this blog discussed yesterday is this passage:

“The Advocate General has set out clearly and unequivocally the Prime Minister’s intention to comply with his statutory duties under the 2019 Act.

“This has been done so by way of detailed and specific averments in written pleadings put before the court on the professional responsibility of those acting for the Prime Minister and the government and with the express authority of the Advocate General for Scotland; he himself is, of course, an officer of the court.

“The Prime Minister and the government having thus formulated and presented to the court their considered legal position, there is no proper basis on which the court could hold that they are nonetheless liable to fail to do what they have in effect undertaken to the court that they will do.”

These 128 words are chilling for the UK government

What the judge has done is to make it that if the government breaks these averments then it will be a serious professional matter for Lord Keen, the Advocate General and the UK government’s chief law officer for Scotland, and it will also have severe other legal consequences – as if the government had broken an undertaking or a court order.

(The Advocate General is the Scottish counterpart to the Attorney-General in the jurisdiction of England and Wales.)

Put succinctly: if the government breaks the averments then Lord Keen could be thrown out of the profession, and the government would itself face sanctions.

Lord Keen is now obliged to ensure the UK government keeps its promises to the court.

And here it is significant that the judge is Lord Pentland.

He is himself a former Scottish law officer, as Solicitor-General for Scotland in the Major Conservative government.

As a former law officer, Lord Pentland knew exactly what professional button to press and, although the UK government did not give a formal undertaking, the averments have been taken to be just as firm – and just as consequential if breached.

The averments that the government will comply with the Benn Act, and (as importantly) will do nothing to frustrate the Benn Act, are serious words with serious consequences.

The case is being appealed – and it may be the appeal judges impose an order out of prudence.

And some Brexiters may welcome an order, as something to blame.

But what Lord Pentland has done is avoid an order and instead made Boris Johnson’s promises matter just as much as if an order was made.

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Boris Johnson has surrendered to the Surrender Act

7th October 2019

The publication today of the judgment in the Scottish case against prime minister Boris Johnson is significant.

On the face of it, the decision was a defeat for the petitioners.

Their attempt to get a formal court order against the government, so as to oblige the government to comply with the Benn Act (the so-called “Surrender Act”) in the event of a No Deal Brexit, did not succeed

It is that failure which has been in the headlines of the news reports.

But those headlines are misleading.

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The government sought to defeat the petition by offering promises that it would comply with the Act.

This offer of surrender to the Surrender Act was made in court documents before the hearing.

Today that offer of surrender to the Surrender Act was accepted.

Now, as long as the other conditions for triggering the Benn Act are met, it is now impossible to see how the government can avoid compliance with the Act.

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The starting point is to know that one way a party facing the prospect of a court order heads off that order is by committing to the court that an order is not needed.

This is routine litigation practice.

And that is what the UK government did in this case.

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In paragraph 37 of the judgment, the government’s promises are set out:

“…averred that the Prime Minister accepts in relation to the 2019 Act:

(a) That, subject to section 1(5), in the event that neither of the conditions set out in section 1(1) and (2) is satisfied, he will send a letter in the form set out in the schedule by no later than 19 October 2019: section 1(3) and (4).

(b) That, subject to section 1(5), in the event that the European Council (“EC”) decides to agree to any extension for the period specified in the letter, he is obliged immediately to notify the President of the EC that the United Kingdom agrees to that extension: section 3(1). 12

(c) That, subject to section 1(5), in the event that the EC decides to agree to an extension until a date other than the date specified in the letter, he is obliged to notify the President of the EC within the period specified in section 3(2) that the United Kingdom agrees to that extension, this obligation being disapplied if the House of Commons has decided not to pass a motion of the kind specified in section 3(3).

(d) That he is subject to the public law principle that he cannot frustrate its purpose or the purpose of its provisions. Thus he cannot act so as to prevent the letter requesting the specified extension in the Act from being sent.”

Here (a) to (c) mean the prime minister confirms he will comply with the detailed provisions of the Benn Act, and (d) confirms he will comply with the Padfield constitutional law principle that he will not frustrate the purpose of the Act.

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Paragraph 38 then sets out that these “averments” were “the first detailed public expression of the Prime Minister’s intentions with regard to the legal obligations imposed on him by the 2019 Act”.

The petitioners said this was not enough and that the government could not be trusted.

The petitioners had a point and a prudent court could grant the order sought (and perhaps on appeal the court may go that bit further).

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If we now go to paragraph 41, you will see the general commitment from the government about its intention behind these averments, and this is crucial:

“…the government had now made their intentions entirely clear. They would comply fully with all the requirements imposed on the first respondent by the 2019 Act and would not seek to frustrate its purpose.”

The judge accepted the averments (at paragraph 42):

“I consider that the averments (and the intentions of the Prime Minister as set out by Mr Webster) confirm the position to be that (a) the first respondent is subject to the obligations of the 2019 Act; (b) in the event of neither of the conditions in section 1(1) or (2) being satisfied, the first respondent will comply with section 1(4) no later than 19 October 2019; and (c) that he will not frustrate the purpose of the 2019 Act or the purpose of any of its provisions.

“In other words, there can be no doubt that the [prime minister] now accepts that he must comply with the requirements of the 2019 Act and has affirmed that he intends to do so.”

And then at paragraph 43:

“The Advocate General has set out clearly and unequivocally the Prime Minister’s intention to comply with his statutory duties under the 2019 Act.

“This has been done so by way of detailed and specific averments in written pleadings put before the court on the professional responsibility of those acting for the Prime Minister and the government and with the express authority of the Advocate General for Scotland; he himself is, of course, an officer of the court.

“The Prime Minister and the government having thus formulated and presented to the court their considered legal position, there is no proper basis on which the court could hold that they are nonetheless liable to fail to do what they have in effect undertaken to the court that they will do.”

The emphasis on the Advocate General’s personal and professional responsibility as an officer of the court is especially eye-catching.

In paragraph 44 the judge discusses the “political” statements which indicate the government may not be serious – but this discussion only underlines the seriousness of the formal averments to the court.

And then at paragraph 45 is this extraordinary passage:

“I would add only this. I approach matters on the basis that it would be destructive of one of the core principles of constitutional propriety and of the mutual trust that is the bedrock of the relationship between the court and the Crown for the Prime Minister or the government to renege on what they have assured the court that the Prime Minister intends to do.

“As the Advocate General’s note of argument says: ‘As already noted, the Prime Minister is well aware of his duty to obey the law, including the frustration principle, and is and will continue to be advised in the usual way on any issues as to the lawfulness of his proposed actions.'”

Not only would a breach of the averments be a discourtesy to the court, the judge stated in emphatic terms that it would be destructive both of the core principle of constitutional propriety and of the core principle the mutual trust that is the bedrock of the relationship between the court and the Crown.

Serious, serious stuff.

I am not a Scots lawyer, and I do not know what the formal sanction would be for a breach of an averment.

Had the averment been placed as a formal undertaking, I understand a breach could be the basis of an order as well as a committal for imprisonment.

But a judgment in these terms makes it plain that a breach of an averment would be regarded as serious as a breach of an undertaking or indeed of an order.

The judge accepted the offer of averments – but this acceptance was in such stark terms so as to remove any wiggle room without a constitutional crisis and/or an immediate coercive order.

The case is now going to appeal, and it may be that the higher court makes the order sought – but whatever happens on appeal the government’s averments would still stand.

In view of today’s Scottish court judgment there is no plausible way the government can avoid compliance with its averments, whatever the higher courts say

British politics will now be about how soon Brexiters and political journalists realise that the prime minister is committed to complying with the Benn Act, regardless of what is said outside of court.

And one added merit of today’s decision is that there is no order for the Brexiters to point to, so as to blame the judiciary.

The promises – the averments – were made by the prime minister himself.

Boris Johnson made the promises required.

The prime minister surrendered to the Surrender Act, and today that surrender was accepted.

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What is a constitution and what is constitutional commentary?

The Ideal City, artist unknown

7th October 2019

Constitutional law is currently exciting, and this is a bad thing for constitutional law should not be exciting.

Constitutions set the parameters of politics, and so if those parameters are being constantly tested then that shows there is something wrong about our politics.

All that said, however, these are good days for being a constitutional commentator

In this post I want to take a step back and set out how I go about being a constitutional commentator: how I approach, think about and communicate emerging constitutional issues.

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The first thing to establish is that I am not an expert.

(I know I must not be an expert, as I am followed on Twitter by Michael Gove.)

I do not have a doctorate or other research degree in the field; I have published no learned volumes or journal articles; I hold no academic position nor have been counsel in a leading case.

I am instead a constitutional geek with a laptop who likes explaining things – and, where I can, I happily defer to genuine experts.

But to be a commentator about anything – unless you are content with producing shallow abuse or easy superlatives – you need to have a way of thinking about your subject.

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So what do I mean by the word “constitutional”?

Here the starting point is an understanding of “constitution”.

Every polity has a constitution, in that there can be a descriptive answer to the question of how that polity is constituted.

A constitution provides for how the elements of the state are arranged; what each element of the state does and does not do; how tensions between those elements of the state are resolved; and the relationship of each element of the state with the individual.

The typical way of thinking about the UK constitution is in terms of institutions: the Crown; Parliament; the government; the judiciary; the devolved administrations; and so on.

Another way is to think in terms of functions: policy-making, decision-making, rule-making; administration; scrutiny and accountability; adjudication and dispute resolution; and so on.

In general terms, an institutional approach to the UK constitution accords with a functional approach – that is, for example, the government tends to be responsible for policy-making and administration – but the fits are not perfect.

For instance, rule-making is a function which can be done by the executive (statutory instruments), parliament (primary legislation); and the judiciary (“development’ of the law and precedents).

In a happy polity there is not much issue about what each element of the state does.

And when there are tensions – such as whether the government or parliament get to make a notification under Article 50, or whether the government can be obliged to publish certain papers when required by the legislature – there are means of resolving those tensions before they harden into contradictions.

A constitutional crisis occurs when those tensions cannot be resolved.

(By “crisis” I mean a serious situation the outcome of which cannot be predicted.)

So far with Brexit, there has been considerable drama (and political crises) but there has not – yet – been a constitutional crisis.

The UK constitution also provides for certain general (maybe universal) principles such as the rule of law (that each element must have a legal basis and must not breach legal rules), the separation (or balance) of powers (that each institution should not have absolute control and can be checked by other institutions), and the legislative supremacy of parliament.

Constitutional principles apply when considering how each element of the state goes about its activities and how tensions are resolved.

And taking an interests in these matters, and taking these matters seriously, is what I mean by the word “constitutional”

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So if that is how one thinks about constitutions, how does one go about commentating.

For me, useful commentary comprises three stages.

First, there is ascertaining the correct and relevant facts – and this can be harder than it seems.

Second, there is evaluating those facts – and this not only means understanding what has happened but also understanding what did not happen and could have done – the roads not taken, the decisions not made, and the words not used.

And third, there is communicating that evaluation – I choose social media, podcasts, and blogs, while others do television or academic articles.

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These are exciting times to be a constitutional commentator.

As one based in England, this must be the most exciting time to be a constitutional commentator since the 1680s.

(Scottish, Irish and Welsh commentators may – and do – have different views.)

The UK constitution is currently close to crisis over Brexit

The ultimate causes of this predicament are, in my view, constitutional and policy.

The constitutional cause is that a non-binding referendum result has been treated as a binding “will of the people” which confers absolute authority and cannot be gainsaid, and this has undermined the usual constitutionally balanced roles of parliament, the executive and the judiciary.

An active agent – some would say a poison – has been injected into the body politic, and the body politic does not know how to handle it.

The policy cause is that an immensely complex task – of UK breaking with the EU after 45 years – has been treated as if it is simple and can be done at speed.

These two causes have placed the UK into the position where the constitution has been pushed to its limits, and may well be pushed over those limits.

But one day soon, we must hope, constitutional law will cease to be exciting and become dull again.

And that no one will be interested in reading constitutional commentary, as there would be nothing constitutionally interesting for anyone to comment on.

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