Author: David Allen Green

Spare time for the monarchy

9th January 2022

You do not need to read the (as yet) unpublished book Spare, or even watch the interviews with Prince Harry, the duke of Sussex, to know there is something significant happening with the British monarchy.

But whatever the content of the book, and whatever is said (and not said) by and against the author, it will be important not see this just as an exercise in immediate cause-and-effect.

There has been a problem for sometime with how the monarchy and its circle – which we can dub for convenience “the Palace” – has conducted itself in terms of politics and media.

The “never explain, never complain” mantra, combined with the use of quiet and soft media-political influence, and the use of the extended family in public roles as “the firm”, was born out of the post-war predicament of the monarchy.

Looking back it may seem obvious that, of course, the British monarchy was going to survive and indeed thrive after the second world war.

But.

For Elizabeth II, whose uncle had had his throne taken from him by politicians and whose father had his empire turned into a commonwealth, it may not have looked so certain.

Indeed, the United Kingdom of Great Britain and Ireland, over which her grandfather had reigned, had been radically configured in her father’s lifetime.

And her husband and many others close to her knew directly how other countries had ended their monarchies.

The crown, as Elizabeth came to the throne, was precarious.

This sense of precariousness is the one thing which the Netflix series The Crown gets right, even if it gets many historical facts wrong.

As such, the “never explain, never complain” mantra, combined with the use of quiet and soft media-political influence, and the use of the extended family in public roles as “the firm”, was a holding operation.

And it worked.

But it was unusual – other monarchies, sometimes derided as “cycling monarchies” – show other European models of monarchy can survive.

And even if it worked, it does not mean that “the firm” model was permanent.

Other problems in the wider royal family and the Palace organisation also show that the model may be imploding.

The publication of Spare may be a cause of certain events, but it may also be the accelerator of certain trends, and the effect of others.

And what worked for the monarchy in the decades after 1945 may not be what will work in the decades after 2022-23.

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In the comments below, comments with particular allegations against anybody are unlikely to be published: this is a post about constitutional issues.

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New Essay at Substack: Perhaps the most significant UK constitutional case of the last fifty years

6th January 2023

Over at my new law and lore Substack, I have published an essay for paying subscribers on how the Malone case of 1979-1985 exposed the lie of our supposedly liberal constitution and changed the way we were governed.

The essay starts as follows:

Consider this simple, attractive proposition: in the United Kingdom, you are free to do as you will, unless there is a law against it.

What could be wrong with such a nice proposition: it is almost a perfect articulation of principled liberalism.

But.

This proposition can have a hidden and ugly implication.

For it also can mean that the State can do as it wishes, to you and other people, unless there is a law against it.

And the case which exposed this unpleasant truth – and helped put an end to it, so that the State was required to have a legal basis for interfering with our lives – is the 1979-85 case of Malone.

This is the story of that case, and of its effects.

You can read the rest of the essay with a paid subscription here.

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This essay is also being posted on Patreon for those who subscribe to this blog using that medium.

For those who subscribe and donate through either Patreon or PayPal, please leave a “PRIVATE” comment below confirming you want me to add your email address to the Substack system so you can have a one-year complementary subscription to the law and lore Substack.

It is important that nobody pays “twice” for my content.

From ornament to instrument – how current politics are forcing constitutions to work in the UK and USA

6th January 2022

This is just a short post, prompted by the ongoing inability of the Republicans in the United States House of Representatives to elect a speaker.

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There is usually no problem in a speaker being elected: the first day of the new House of Representatives is usually a ceremony, attended by the smiling families of new congressmen and congress women.

But now we are on the third day of voting, because a group of hardline Republicans are contesting what would normally be a coronation.

Two years ago today (as I set out in last week’s Substack essay), the counting and certification of electoral college votes was also converted from being a mere ceremony to something far more politically vital.

Indeed, a plan was in place to use what was normally (again) a coronation into an opportunity for the defeated president Donald Trump to somehow retain office.

And over here, during the last days before the United Kingdom left the European Union, there was an attempt to use a prorogation of parliament so as to force through a no-deal exit.

That (purported) use of the prorogation was contested and then quashed by the Supreme Court.

But usually prorogations are dull and straightforward affairs, of little interest even to political obsessives.

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Our current volatile politics keeps converting dull and ceremonial elements of our constitutions into things that matter.

Our constitutional arrangements are being forced to work, where they previously only had to decorate.

To an extent this is a good thing: like all the functioning parts of a car occasionally being tested for a MoT test.

But it also may be a bad thing, as too much stress may mean that element of the constitution buckles and breaks.

Either way, it is certainly exciting.

But, as we know, constitutional law should not be exciting, it should be dull.

Day-to-day politics should take place within the parameters of a constitution, not constantly pressing on the edges, straining them as far as they will go.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

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

A look at Keir Starmer’s proposal for a “Taking Back Control” Bill

5th January 2023

Today the leader of the main opposition party in the United Kingdom gave a speech.

You can read a version of Keir Starmer’s speech on the Labour party website.

One part of it which seems possibly interesting from a legal perspective is a proposal for a “Taking Back Control” Bill.

This is what the speech said:

“So we will embrace the Take Back Control message. But we’ll turn it from a slogan to a solution. From a catchphrase into change. We will spread control out of Westminster. Devolve new powers over employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances.

“And we’ll give communities a new right to request powers which go beyond this.

“All this will be in a new “Take Back Control” Bill – a centrepiece of our first King’s speech. A Bill that will deliver on the demand for a new Britain. A new approach to politics and democracy. A new approach to growth and our economy.”

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This call for de-centralisation and devolution will face the two fundamental problems every such call has faced since the nineteenth century.

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The first problem for de-centralisation and devolution is the doctrine of the supremacy of the Westminster parliament.

This doctrine, which in good part was a Victorian innovation not known to earlier jurists, tells that all legislative power in our polity rests with the Crown-in-Parliament.

This means that no other body in the United Kingdom can legislate other than to the extent permitted by the Westminster parliament.

Recently this doctrine was illustrated by the Supreme Court decision on a reference by Scotland’s Lord Advocate.

In effect, the Scottish parliament is merely another statutory corporation, subject to the rule of ultra vires.

The Westminster parliament will not easily forego this legislative supremacy and – if we adhere to the doctrine of parliamentary supremacy – it may be impossible for the Westminster parliament to do so.

This means that any de-centralisation and devolution is at the Westminster parliament’s command: Westminster can grant this seeing autonomy, and Westminster can easily take it away.

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What we do have are numerous devolution and local government statutes, all defining and limiting what various authorities can and cannot do.

There is no real autonomy – even for the Scottish parliament.

No ability to do things despite what the Westminster parliament would like an authority to do.

Ambitious projects by local authorities – such as when the Victorian town of Birmingham (not even yet a city) went and bought and operated its own gas and water industries – would be impossible now.

That is real de-centralisation and devolution – doing things the centre cannot stop.

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The second problem for de-centralisation and devolution is in respect of policy and administration, rather than law.

It is the sheer dominance of HM Treasury in Whitehall and the public sector more generally.

For example, HM Treasury has a monopoly in respect of almost all fiscal and financial – that is, tax-raising and borrowing – powers.

(Even the Scottish parliament has limited autonomy to vary income tax rates and the Scottish government power to borrow money.)

And no public body has complete fiscal autonomy – and, indeed, many public bodies rely on central government for grants and financing.

It is unlikely that Whitehall will happily allow regional authorities and devolved administrations absolute power to raise taxes and borrow money.

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And now back to the word “control”.

Unless regional authorities and devolved administrations have absolute power to raise taxes and borrow money, or to make rules and mount ambitions problems, then they do not have “control”.

Instead, “control” will stay – as it always does – with Westminster and Whitehall.

Westminster and Whitehall can extend the leash, but they can pull the leash back.

That is not “control”.

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Looking more closely at Starmer’s speech, it is not clear to whom this “control” is to be actually given.

Consider the following passages (emphases added):

“…the Britain that Labour can build. A fairer, greener, more dynamic country with an economy that works for everyone, not just those at the top. And a politics which trusts communities with the power to control their destiny.”

“Giving communities the chance to control their economic destiny. The argument is devastatingly simple.”

“It’s not unreasonable for us to recognise the desire for communities to stand on their own feet. It’s what Take Back Control meant. The control people want is control over their lives and their community.”

“We need to turbo-charge this potential, but Westminster can’t do that on its own, it can only do it with communities. That’s why Labour will give them the trust. The power. And the control.”

And so on.

There is noting specific here as to who will get this supposed “control”.

Will it be existing local authorities or new regional bodies?

Will it be new legal entities smaller than existing councils?

And – most importantly if this really is about “control” – what will happen if those “communities” want to do something which Westminster and Whitehall do not want them to do?

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Starmer did list some of the topics where there could be devolution of powers: “employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances”.

But devolution is not granting “control”, as there will be limits to what even the most ambitious local authority will be able to do in the face of any opposition from Westminster and Whitehall.

And there is also a respectable argument – which you may or may not endorse – than on issues such as transport and housing, there needs to be far less local autonomy, not more, so for us as to escape the ongoing blight of NIMBYism.

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Starmer insisted in his speech that the “Take Back Control” will be turned from “a slogan to a solution”.

And it we missed the import of that rhetorical turn, Starmer then said it will be turned from “a catchphrase into change”.

(This is reminiscent of his predecessor Tony Blair’s wonderful statement once that “[a] day like today is not a day for soundbites, we can leave those at home, but I feel the hand of history upon our shoulder with respect to this, I really do.”)

But there is nothing in this speech which does go beyond slogans and catchphrases.

There is no substance to the supposed “controls” which are to be given “back”.

And there is nothing specific as to whom or what those “controls” are to be given.

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You may have Very Strong Opinions on de-centralisation and devolution.

You may welcome Starmer’s speech as a good and welcome signal of change.

You may oppose it as it may mean impediments to policies which may need to be directed at the national level.

But what one cannot say is that it tells us much, if anything, about how de-centralisation and devolution is to work in practice.

And it says nothing about how – at least in England – local authorities can break free from the real controls of Westminster and Whitehall.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

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

The law and policy of the return of the Parthenon marbles

4th January 2022

Photo credit

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The Parthenon marbles situated in the British Museum are back in the news.

From a legal perspective the following five points can be made – and have been made previously on this blog – here and here.

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First, there is no sound basis for the often asserted proposition that the marbles were lawfully acquired by Elgin before being given to the museum.

Any close look at the circumstances of the acquisition raises a series of issues.

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Second, if they were not lawfully acquired by Elgin then the marbles were not his to give to anyone – “title” in the property could not have passed at the time to the British Museum.

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Third, if the marbles were not lawfully acquired by the British Museum then the museum’s usual defence – that it is a serious and conscientious custodian of the world’s treasures for the public benefit – while admirable, is irrelevant to whether the marbles were lawfully acquired.

The later legal protections for possessions in its collection for the public benefit do not make good any deficiency in how the marbles were acquired.

Of course, it is far too late for this to be a practical legal issue – statutes of limitation and so on have long extinguished any legal claim against the museum for recovery of the marbles.

The museum will undoubtedly have now acquired title just by sheer passage of time: a sort of posh version of squatters’ rights.

Yet, just because there can now be no legal claim against the museum does not mean the marbles were lawfully acquired in the first place.

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But.

Where the British Museum have a stronger case is on the fourth and fifth points.

The fourth point is that the current legislation does make it difficult-to-impossible for the museum to dispose (to use the legal word) of the marbles as it wishes, either by returning them to Greece or otherwise.

An elaborate legal basis could, perhaps be provided, but – on balance – one suspects an English court would rule such a disposal as unlawful.

This means this is not a matter solely for the trustees of the museum (as I explain here).

For the marbles to be returned properly to Greece would require a change in primary legislation, which in turn means it has to have government support (or at least no government opposition).

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And this brings us to the fifth point: the future of the marbles is in the realm of politics, and not law.

It is a policy decision, where any legal changes would flow from a decision by ministers.

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The proposed work-arounds, of the British Museum loaning the marbles back to Greece, would fit within the current legislation.

Just as many things in the collection can be lent to other museums in other countries.

One can understand why the Greek government will not find such offers acceptable, despite the current hopeful leaks to the British political press.

Perhaps the Greeks will insist on there being a transfer of property – which would make it a legal issue.

But that is a legal issue which can only be practically resolved by politicians.

And as such it is a perfect example of a subject where law and policy mix and combine.

So perfect an example, in fact, that it should be on display in, well, a museum.

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

Rejoiners should brace themselves for the United Kingdom to spend a long time outside the European Union

3rd January 2022

First of all, may I wish all of you that follow this blog a happy new year, even if I post things which irk you.

I do not write things just so as to provoke (and indeed much prefer for people to agree with me) but I do try to get things right, and sometimes what I think is right will be what some of you will think is very wrong.

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Second, as you may know I have started a Substack.

For now, every post published on this blog will also be crossposted on the Substack, and nothing will visibly change with what is on this blog.

But I will also be providing additional content at Substack – an essay every Friday on some aspect of legal history or the relationship between law, lore and popular culture – for paid subscribers.

(That essay will also be sent free to Patreon subscribers, and I will also make the post available for free for those who have donated to this blog through Paypal.)

The paid-for subscriptions will enable me to justify more time spent on commentary here, on Mastodon, and for my Substack essays, as all that commentary involves a considerable opportunity cost.

To subscribe to my Substack, click here.

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And now: Brexit.

Fifty years ago, on 1 January 1973, the United Kingdom, Ireland and Denmark joined the so-called European Communities, of which the European Economic Community was the most significant.

(This EEC, in turn, became the European Union on 1 November 1993.)

Thirty years ago, on 1 January 1993, the so-called Single Market was (nominally) completed.

(Indeed, for those at the time “1992” was itself a political totem, and as much a bandied a shorthand as “Brexit”.)

Both dates were momentous for the United Kingdom – especially the latter, as the Single Market in the form it took was very much a triumph for the United Kingdom government, and the architect of the Single Market in that form was a British Conservative politician, Lord Cockfield.

But.

The day was left largely unremarked, even by pundits.

Even the fact that 1 January 2023 was the second anniversary of the United Kingdom effectively leaving the European Union, after the transition period, was largely left unremarked by Brexit supporters.

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And now the news reports there are calls for the United Kingdom to re-join the European Union.

Remainers – now Rejoiners – excitedly share links to opinion polls showing majorities in favour of this and majorities against that.

This is in contrast to Brexiters not being to point to a great deal, if anything, to show that the departure from the United Kingdom has so far been a success.

But.

Re-joining is unlikely to happen, at least for some time.

And this is because there are two things which need to happen before the United Kingdom can even be considered as a restored member of the European Union.

The first is that the politics of the United Kingdom needs to settle down, and for there to be consistent and substantial majority of both voters and politicians in support of rejoining.

There is no clear sign of this happening, despite the wishful thinking of many.

The current governing party is in favour of Brexit, and the current opposition party (and likely next government) is not opposed to Brexit.

There is no visible shift in either party, and there is no reason to expect one.

Indeed there is a sizeable wing of the current governing party – and a body of voters – as energetically committed to Brexit as ever.

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And, even if there were a consistent and substantial majority of voters and politicians in support of rejoining, that would not be enough.

For, it would take the European Union – as a whole – to agree.

Believing that the United Kingdom can simply re-join just because we would want to do so is, I am afraid, just another form of British exceptionalism.

And if you were politicians in the European Union, looking at the ongoing political psychodrama of the current governing party over Brexit – and the dogged reluctance of the main opposition party to address the problems of Brexit – would you want the United Kingdom to rejoin?

Really?

Of course not.

There would be a non-trivial chance that there would be a Brexit all over again.

(For more on the practical difficulties of rejoining, see this useful piece by John Cotter.)

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The most difficult step – perhaps even harder than to get Brexiters to admit their Brexit was a mistake – is for Remainers to accept the United Kingdom is out of the European Union for at least a political generation.

What needs to be done is for practical politics to move to a post-Brexit consensus, where our politicians seek to place the United Kingdom in a sustainable and close (but outside) relationship with the European Union.

And to get the United Kingdom to be as much a part of the Single Market as possible, even if the nomenclature has to be politely different.

But – for both “sides” – this is not likely to happen.

Brexiters will see this as betrayal, and Remainers will see this as imperfect, and so both sides will resist it.

(Just as both Brexiters and Remainers voted down the Theresa May departure deal.)

So we will remain in this post-Brexit limbo.

And we can celebrate the anniversary of this limbo, well, every 1 January.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

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

New post at Substack: 2021 and 2022 were the years constitutionalism was tested

31st December 2022

Over at Substack, for paying subscribers, I have posted a 2000 word essay (with even some multi-sentence paragraphs!) reviewing 2021 and 2022 from a constitutionalist perspective.

I will be doing such an essay at Substack every week on Friday for paying subscribers.

(These essays will also be cross-posted on Patreon – and I will also email copies to anyone who has made a PayPal contribution in the last year – just make a “Private” comment below asking for this.)

Normal daily, free-to-read blogging on law and policy will resume here on Monday.

Thank you for reading and supporting this blog.

I wish you a happy and constitutionally dull new year.

New weekly law and lore content on my Substack

30th December 2022

I think I have worked out how to balance (a) carrying on with daily free-to-read posts on law and policy issues here with (b) also providing substantial original content for paying subscribers.

I will continue to post my daily law and policy post, and this will be crossposted to my “law and lore” Substack.

But.

For paying Substack subscribers I will also provide an exclusive weekly long explanatory background post on a more general legal topic.  Or this exclusive post may be on something to do with legal history or the relationship between law and lore/popular culture.  It will be something I will enjoy writing and which I hope you will enjoy reading.  And there even will be multi-sentence paragraphs, like this one.

As and when I start podcasts in the new year, these will be made available first to paying Substack subscribers too.

So please do consider becoming a Substack subscriber.

My first paid-for post will be tomorrow on Saturday 31st December 2022 – a review of 2022 as a constitutional year.

They will be published every Friday thereafter.

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If you are already a Patreon subscriber, this new exclusive content will also be posted on my Patreon site, so that you will not have to pay twice.

(I will also be contacting those of you who make regular donations by other means about either (a) you migrating to a Substack subscription or (b) me providing you with an appropriate other means of accessing the exclusive content – if you are one of these, please let me know your thoughts as a comment below, with comment marked PRIVATE)

It is important that nobody feels they are paying “twice” for my content.

Alternatively, do feel free to cancel your existing payment arrangement and switch to a Substack subscription.

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Many thanks you lot.

I am looking forward to freeing up more time to do longer content for you.

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Two favourite legal fiction writers

23rd December 2022

Yesterday this blog asked for your favourite fictional lawyers – and why.

There were some splendid replies – some old favourites, some new (at least to me) and fascinating-sounding.

As I am on holiday, I will not write a long post in response to those questions, but I would like to perhaps surprise you with who are my two favourite fictional writers about law.

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The first is the Master herself, Jane Austen.

(Yes, I am an absolute Janeite and I see her as the greatest writer in the language, but that is for another day.)

What Austen does about law is so deft and clever you hardly notice she is doing it.

With a sentence, or even a word, she can describe and convey the sophisticated and elaborate legal relationships of the landed gentry and lower aristocracy of her time.

Take these examples from Pride and Prejudice:

“Mr. Bennett’s property consisted almost entirely in an estate of two thousand a year, which, unfortunately for his daughters, was entailed, in default of heirs male, on a distant relation; and their mother’s fortune, though ample for her situation in life, could but ill supply the deficiency of his. Her father had been an attorney in Meryton, and had left her four thousand pounds. […]

“When first Mr. Bennet had married, economy was held to be perfectly useless; for, of course, they were to have a son. This son was to join in cutting off the entail, as soon as he should be of age, and the widow and younger children would by that means be provided for.”

There are property lawyers of great seniority and experience who would not come anywhere near being able to explain an entail (or anything else) as straightforwardly.

And Austen does it with what looks like a flick of her pen.

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The other writer was a lawyer himself, though this is not widely known.

Indeed, many literary reference books where they mention his day-job at all describe him merely as an insurance clerk.

In fact he was, in effect, a personal injury lawyer, investigating and assessing industrial accidents for the state insurance scheme.

Perhaps because of this he was able to describe the world of law and bureaucracy so brilliantly and scathingly (and chillingly) in his novels and short stories.

That writer is, of course, Franz Kafka.

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What fictional writers about the law do you most admire? And why?

Please add your reply below.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

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