Author: David Allen Green

My new FT Video: constitutionalism and the reversal of Roe v Wade

12th July 2022

This blog is written from a liberal constitutionalist perspective.

But like “country” and “western”, liberalism and constitutionalism are not the same thing, even though the coupling works well in practice.

Take for example the abortion issue.

From a liberal perspective, the issue is about who makes the decision.

The decision here being whether a woman can have access to a safe abortion or whether she should be forced to continue with an unwanted pregnancy.

The liberal will consider that the decision – at least before late in the pregnancy – should be that of the woman, in consultation with her doctors.

Others, however, will insist that the decision should absolutely not be that of the woman concerned, but should be decided on her behalf by a legislature.

But.

Believing that the decision should be that of the woman concerned does not, in and of itself, tell you how the constitutional and legal system should provide for that right.

And one can be a conservative constitutionalist as well as a liberal constitutionalist, as constitutionalism is about believing there should be rules and principles that provide the parameters of political and legal action.

In the United Kingdom – and now including Northern Ireland – the right to an abortion is not a constitutional right, or it is not usually considered as such.

It is a legal right provided for by statute.

In the United States it was not possible to enact similar legislation that would cover all Americans, not least because of the disproportionate power many conservative but less populous states have in the federal legislature.

So the route taken by those in favour of a right to abortion was to litigate so that the United Supreme Court found that the right to an abortion was a constitutional right.

And the Supreme Court found that there was such a right in 1973.

Then, a couple of weeks or so ago, a differently constituted Supreme Court found there was not such a right.

Over at the Financial Times I have done a video setting out this constitutional journey.

The video is also on YouTube:

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Many of you will have strong opinions about abortion – I certainly do – but the focus of this blog and and any comments below is on how the issue is or should be dealt with as a matter of law.

The United States took a constitutionalist and judicial approach, not least because there was no other United States-wide approach that would work.

But what one Supreme Court can give, another Supreme Court can take away.

And so it was always a precarious basis for such an important right.

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From 1995 to 2022: governing party leadership contests in perspective

11th July 2022

In late June/early July 1995 I was spending some time in Boulogne.

It was the time of the Conservative leadership contest between John Major and John Redwood, and so every day I would go to a café that sold English newspapers to find out what had happened one day or sometimes two days before.

And apart from some occasional radio news, that was it for that day: a few minutes for information about the important matter of who would become Prime Minister and thereby shape the United Kingdom’s relationship with the (then new) European Union.

In 2022 the significance of the current contest is in one way the same: the question of who will be Prime Minister as well as leader of the governing Conservative Party.

But it is very different – not least in the deluge of information, all day, every day, about the candidates.

The biggest difference is that all the current candidates are now on the Redwood ‘side’ of the matter of Europe.

Indeed, in this post-Brexit period, all realistic Conservative leadership contenders have to say things that would make John Major wince and John Redwood clap and cheer.

The question of the leadership of the governing Conservative party is no longer also a question about the future of the United Kingdom and Europe.

That question has been answered – and the answer has also been adopted by the main opposition Labour party.

The division between Major and Redwood in 1995 is not even a division between the main two political parties.

Indeed, there seems very little policy difference between the current candidates for leadership and thereby the premiership.

This is why they are seeking to outbid each other in fantastical demands for tax cuts and infantile pandering to horrible culture wars.

These are things are what you talk about when you do not want to engage in hard policy.

They are not about policy, but a lack of policy.

But another thing the 1995 and 2022 leadership contests do have in common: both were about two years from the next general election.

Given the recent by-election defeats the current governing party looks as if it is heading for a heavy defeat, just as it was to in 1997.

If so, the current contest is for the prize of leading the Conservatives into that defeat – and without enough time to put in place an entirely new policy agenda, even if the successful candidate wanted to do so, which none of the candidates do.

Of course, somehow, some of the candidates are even worse (from a liberal perspective) than others, and one or two a lot worse.

But there is little to separate them – so far – on overall policy.

This is perhaps not surprising: the departing Prime Minister Boris Johnson did not go because of policy – in contrast to say, Margaret Thatcher in 1990 where the Poll Tax and European policy were central to her removal.

And so: this is a leadership contest where the winning candidate is not likely to change policy and who is also likely to lose the governing party’s majority at the next election.

If you did not have the internet and twenty-first century communications, would you walk to a local café to follow what was happening for a day-to-day account?

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Has Johnson actually resigned? And, if so, can he renege on that resignation?

8th July 2022

The fact that people do not believe Boris Johnson has resigned – or believe he will reverse a resignation – speaks to the wariness many have about this particular cynical opportunistic politician.

And they are right to be wary.

This post – which follows a popular Twitter thread yesterday – sets out what appears to be the current position.

Put simply: the matter has been taken out of his hands.

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Has Johnson resigned?

Johnson holds two positions from which he can resign: the leader of the Conservative Party and Prime Minister.

Yesterday Johnson announced his resignation as party leader.

Here, yesterday’s speech from Johnson was significant.

True, he did not use the word ‘resign’.

But the R-word is not a magic word, and there was no formal reason why he had to utter it aloud for it to make all the difference.

What he did say was enough:

“It is clearly now the will of the parliamentary Conservative Party that there should be a new leader of that party and therefore a new prime minister.

“And I’ve agreed with Sir Graham Brady, the chairman of our backbench MPs, that the process of choosing that new leader should begin now and the timetable will be announced next week.

“And I’ve today appointed a Cabinet to serve, as I will, until a new leader is in place.”

The only meaning these words can have is that a new leader can now be put in place.

And the only way this can happen is for him to cease to be leader.

With his statement yesterday, Johnson – at a stroke – lost control of the process.

As and when the parliamentary Conservative party choose a new leader, that new leader will be invited by the Queen to form a new government.

Johnson does not need to do anything more.

He will cease to be Prime Minister by automatic operation of the constitution.

Under the current rules of his parliamentary party, he also cannot stand for election in the new contest.

All this means is that should now just a question of time before there is a new Prime Minister.

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Can he renege on his resignation?

One fear is that he may seek to renege on his resignation – to change his mind.

He can certainly purport to do that – and it is not impossible that he will try.

But.

It would not be a matter for him – it would be a matter for the 1922 Committee.

Again, the situation is no longer under his control.

For this to happen would require (a) for him to (purport) to (somehow) rescind his resignation and (b) that rescission to be accepted by the 1922 Committee.

There is perhaps a possibility that the 1922 Committee may agree to this, but that would be their collective decision, and not his.

And if the 1922 Committee did not agree to the rescission, then the process would continue, a new leader will be selected and asked to form a government, and Johnson will still cease to be Prime Minister.

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What if, what if?

Of course, there are various possible situations that could happen between now and Johnson ceasing to be Prime Minister.

The conflict with Russia could escalate; there could be a new pandemic, or a new wave of the current pandemic; the Queen may die; and so on.

Johnson may wish to contrive an emergency, or there may be a genuine emergency.

It may well be that a development is so immense that Johnson may say he should continue in office.

But.

In every conceivable scenario, we come back to the same point: it would not ultimately be a matter for him.

Yesterday he lost ultimate control of his political fate and there is no situation which means he regains that control.

It may be that Johnson hangs on, hoping something will turn up which will mean he can carry on – and this is plausible.

He is a cynical opportunist.

But, if that was to happen, it would require others to decide that to be the case, and not just him.

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Sooner rather than later?

There are strong – if not overwhelming – arguments that Johnson should go sooner rather than later.

This is a politician who cannot be trusted.

The highly important disclosure that Johnson met with a ‘former’ KGB spy as Foreign Secretary during a security crisis and without officials is just one of many reasons why he should no longer be Prime Minister.

However, the constitutional position is not straightforward.

There is no formal role of ‘acting’ Prime Minister – it is a binary position, either you are Prime Minister or you are not.

There is some precedent for someone to come in as a ‘caretaker’ – in 1834 the former Prime Minister the Duke of Wellington headed a caretaker ministry until the new Prime Minister Sir Robert Peel could return from abroad.

And there is one former Conservative Prime Minister still in parliament, Theresa May.

Imagine that.

Others have suggested that the current deputy Prime Minister Dominic Raab could be an interim Prime Minister.

In the meantime, there are rules and conventions that apply to lame duck Prime Ministers, which applied in the last days of the premierships of Gordon Brown, David Cameron and Theresa May.

Here see the commentary of the peerless Dr Catherine Haddon:

But merely me typing – and you reading – ‘rules and conventions’ in the context of the departing Prime Minister Boris Johnson make one realise their limits in this particular case.

That said: so far, one day later, it looks as if Johnson and those who have agreed to serve in his cabinet are abiding by those rules and conventions.

And it an inescapable fact that the Conservative Party do need to have a new leader – and some of the candidates are not the sort you would want to rush into premiership.

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Of piglets and grease

None of the above means that the ‘greased piglet’ will definitely now leave the premiership.

It just means that it is no longer solely the decision of Boris Johnson.

His cynical opportunism in and of itself will not be enough.

And it may well be that his cynical opportunistic mind is already moving on – and there will be personal advantage in him leaving the House with its (for him) irksome rules on financial disclosure and its (for him) dangerous committees investigating his conduct.

And any bad conduct now may also limit his last remaining source of patronage bounty – the resignation honours list.

Johnson is many things, but he is not stupid.

He is calculating.

You may recall that in 2019 many feared that he would breach the Benn Act and not ask for an Article 50 extension.

But, in the end, faced with an absolute obstacle, the bravado bullishness fell away – and the cynical opportunist adjusted to the situation.

And yesterday, he similarly did not push the situation so as to ‘fight on’.

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So: if others do provide him with even the possibility of staying on as Prime Minister, he may well seek to exploit that possibility.

But: it is no longer his own absolute choice.

His next cynical opportunities are now elsewhere.

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The resignation of Boris Johnson – and why that is not enough for good government to return

7th July 2022

Well.

This morning I was writing a Twitter thread on what would happen if all government minsters resigned.

For such a surreal thing to be of any practical concern, rather than for academic speculation, indicates that it has been an odd few days in the politics of the United Kingdom.

And now the current Prime Minister has announced his resignation.

He is not going immediately – but the process for a finding a new Conservative party leader will now start and it seems to me that Johnson cannot now do anything to stop that process.

Once that process produces a new leader, that leader will be invited to form a government by the Queen, and Johnson – by automatic operation of the constitution – will instantly cease to be Prime Minister.

He may go even sooner, with a ‘caretaker’ Prime Minister put in place until a new Conservative leader emerges.

Johnson may remain in office, but his announcement today means he has lost ultimate control of his political fate.

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His resignation shows the operation of another constitutional rule – perhaps the most fundamental constitutional rule of all.

That rule is that Hubris is usually followed by Nemesis.

Wise politicians know this – and so they run tight ships, knowing that the pull of the tides can result in capsizing or being wrecked.

Less wise politicians assume their moment of great power will last forever.

Johnson – a successful electoral politician – was brought down not by any great policy issue or national crisis.

From Partygate and the Owen Paterson affair, he and his circle made unforced error after unforced error.

He and his circle believed that they could casually defy rules and conventions.

And so the ship of state became a ship of fools.

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Johnson in December 2019 had the greatest prizes that the constitution of the United Kingdom can bestow on a Prime Minister.

He had won an emphatic general election victory – and so he had the “mandate” that meant he could translate his programme into practice without delays in the House of Lords.

And he had a substantial majority – of eighty – which meant he could get through the House of Commons legislation and revenue provisions without opposition.

He even had, with Covid and then Ukraine, two huge unifying issues for him to pose as a Churchillian leader.

Yet, two-and-a-half years later, he is resigning.

And the mandate and the majority have been wasted.

The latest Queen’s Speech was an embarrassing sequence of proposals, showing that the government had no direction.

And the one thing that Johnson and his government did do – Brexit with a withdrawal agreement – he was seeking to break.

Power without responsibility, as another Prime Minister once said in a different context.

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Brexit was begat by the Conservative and Unionist Party.

The 2016 referendum was an exercise in party management, and it was from that egg that Brexit first emerged.

After 2016 the Conservative and Unionist Party said Brexit should mean Brexit, and they campaigned on that basis.

And under Johnson, the Conservative and Unionist Party “got Brexit done”.

But Brexit, being ungrateful, is destroying the Conservatives and dismantling the Union.

The revolution is devouring its begetters.

It is a political morality tale.

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And so good bye then Boris Johnson, if not now but soon.

The curious thing is that he may not even be the worst of the post-2010 Prime Ministers.

It was David Cameron who risked the future of the country on a single turn of pitch-and-toss – and with no preparation for a Leave vote.

It was Theresa May who insisted that Brexit had to be done, at speed, with its ‘red lines’ that kept the United Kingdom outside the Single Market.

These macro political mistakes were profound.

And we now have the greatest political mess in living memory, if not modern history.

It is time for the excitement to die down, and for a return to the dull work of taking government seriously.

The ejection of the repugnant Johnson from the body politic is a necessary step towards such political good health – but it is not a sufficient one.

Let us hope that we have not left it too late for there to be a recovery.

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What if Boris Johnson refuses to resign?

6th July 2022

Since 2016 we have had in the United Kingdom a great deal of constitutional drama.

We have had a referendum; supreme court cases; departure from the European Union; a hung parliament; and prime ministers come and go.

This has been all very exciting – though, of course, constitutional affairs should not be exciting.

They should be dull.

This is because a constitution sets the parameters of everyday political action – the rules of the game – and if those parameters are being continuously tested and contested then that indicates all is not well with the polity.

But for all this drama, there has not yet been a constitutional crisis – close, but not quite.

Here ‘crisis’ means a serious situation, the outcome of which is not certain.

And ‘constitutional crisis’ means such a situation where there is the prospect of a constitutional tension hardening into a contradiction.

Since 2016, whenever it has looked like that a constitutional drama was coming close to an actual crisis, the situation has resolved: court orders were complied with, and Article 50 extensions were put in place, and so on.

Something gave way each time.

But.

What happens if the current Prime Minister Boris Johnson keeps refusing to resign?

As it stands he is the leader of a majority party, which he led to victory at the 2019 general election.

Since then he has had a collapse in political support, and in the last couple of days at least twenty members of the government have resigned.

It may well be that his own parliamentary party has another vote of confidence, which he may lose.

Or he may be told by senior backbenchers that he should resign, or face such a vote.

In normal times such a besieged Prime Minister would resign.

But what if Johnson refuses?

What if he says no to the delegation?

What if he refuses to quit after losing a vote of no confidence as leader of his party?

We would have a serious situation, certainly.

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First, however, we need to distinguish between his respective positions as party leader and as Prime Minister.

A successful vote of no confidence in him as leader of the Conservative Party does not – in and of itself – remove him as Prime Minister.

And from time to time, we have had Prime Ministers who were not party leaders.

So the leadership of his party could be taken from him – but that would not mean automatically that he would cease to be Prime Minister.

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There would then be a problem.

His parliamentary party could perhaps seek to force the issue and support a parliamentary (rather than a party) vote of no confidence – but that may risk Johnson seeking a general election (which a Prime Minister can ask the Queen for, now that the Fixed-term Parliaments Act is repealed.

Or they could join others in our society and go on strike, and refuse to support government business.

But other than that, and tutting loudly, there is little that the parliamentary party can do directly to remove an unwanted Prime Minister.

Indirectly, however, they can elect a new leader – and hope (and expect) that new leader to be invited by the Queen to form a government.

For it is only the monarch, in our system, who has the direct power to hire and fire a Prime Minister.

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But here we have another problem.

The Queen may have that power in theory – but Buckingham Palace would be reluctant to intervene in a politically controversial situation, such as a stand-off between the Prime Minister and his political party.

As this blog recently set out, there are the so-called Lascelles Principles, which are supposed to govern how the Crown would deal with, say, a request for a general election.

But the possible stand-off is not quite the same.

And – and this must be emphasised – the Australia crisis of 1975 still sends shudders through the walls of Buckingham Palace and it is uppermost in the collective memory of those who work there.

Again, there would be an attempt to have a quiet word – just as the chairman of the 1922 Committee will have tried.

But what if Johnson says no to the Queen?

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Well.

We would be at the end of that particular constitutional road and the Queen will have to make the decision to invite someone else to form the government.

She would have to sack Boris Johnson, because she is the only one who can.

Of course, this is not what anyone would want, especially in her jubilee year and with her ill health.

But the constitution of the United Kingdom would offer no other choice.

For, however powerful the office of Prime Minister is, there is still something (theoretically) stronger: the power of the Crown.

And, as this blog has averred before: one useful function of the Crown is not so much in respect of the powers it does have, but the powers it prevents others from having – or exercising.

If the Queen did invite another to form the government, there would be nothing Johnson could do legally or constitutionally.

Indeed, there would be nothing for him to do – he would not need to actively resign.

One moment he would be Prime Minister, and the next moment he would not be.

The premiership would be stripped from him by automatic operation of the royal prerogative.

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Of course, one would hope that Johnson would concede before that point.

But in the United States, his fellow populist Donald Trump has never conceded – and he chose to be away from the White House on the day of inauguration rather than be marched out of it as a trespasser.

Who knows what would happen in practice – whether the matter would get to the Queen or not.

It would certainly be constitutionally exciting.

Brace, brace.

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Our new national pastime is pretending that Single Market membership is not a good idea

5th July 2022

We have a new national pastime in the United Kingdom, to complement complaining about the weather.

That pastime is pretending that the United Kingdom should not rejoin the Single Market of the European Union, even though it is obvious that we should rejoin.

The completion of the Single Market, of course, was in its execution something which owed greatly to the British Conservative politicians of the day, notably Lord Cockfield and Margaret Thatcher.

An array of practical proposals were promoted by the United Kingdom to make it easier to buy and sell goods and services throughout the (then) European Economic Community.

The contribution to the completion of the Single Market is something about which that the United Kingdom generally can rightly feel proud.

But we now have to pretend we do not want to be members of it.

You will recall a sensible outburst from a current government-supporting MP Tobias Ellwood and the response to it from the very chair of the Commons’ Foreign Affairs Committee Tom Tugendhat:

https://twitter.com/TomTugendhat/status/1532445501563469824

This blog covered that exchange here.

Tugendhat is an ambitious politician – and so one explanation for him to not openly admitting Ellwood was right is that it would frustrate his political ambitions.

But.

It is not just Tugendhat.

Here is another ambitious politician, Keir Starmer, the Leader of the Opposition:

Starmer contends:

“Under Labour, Britain will not go back into the EU. We will not be joining the single market. We will not be joining a customs union.”

Here Starmer avoids mentioning Peppa Pig, but we get the following imagery instead:

“The second step we would take is to tear down unnecessary barriers. Outside of the single market and a customs union, we will not be able to deliver complete frictionless trade with the EU. But there are things we can do to make trade easier.

“Labour would extend that new veterinary agreement to cover all the UK, seeking to build on agreements and mechanisms already in place between the EU and other countries – benefiting our exporters at a stroke.

“There was a story on the news the other day about a ‘wet wipe island’ that has formed in the Thames. Made of fat and oil and household rubbish one metre deep and the size of two tennis courts, it is blocking the flow of the river and changing the shape of the riverbed.

“You couldn’t imagine a better metaphor for the Tory Brexit deal. They have created a hulking ‘fatberg’ of red tape and bureaucracy. One that is hampering the flow of British business. We will break that barrier down, unclog the arteries of our economy and allow trade to flourish once more.”

Fine words.

Yet describing a “hulking ‘fatberg’ of red tape and bureaucracy” is one thing, actually unclogging it another.

Starmer – like Theresa May before him – seems to think that a pick-and-mix approach will somehow work – with the European Union happily agreeing to discrete things that will perfectly suit the United Kingdom.

Perhaps that will work, but it is unlikely to do so.

The political truth is that from Northern Ireland to professional qualifications and veterinary services, there is a glaring solution to the problems.

Membership of the Single Market.

Tugendaht’s excuse is about the United Kingdom not wanting to be a rule-taker.

But.

We are a rule-taker – and one with added bureaucracy, just for us.

Of course, the European Union may not quickly allow the United Kingdom to again be part of the Single Market.

Would you, if you were the European Union?

Why would you chance having to deal with more of the United Kingdom’s psychodrama and collective political breakdown since 2016?

So, yes – membership of the Single Market may be currently unrealistic and unlikely.

Yet that is not an excuse for this continued pretence that it would not be in our interests.

The 2016 referendum question was silent on membership of the Single Market – and there are several European countries that are part of the Single Market and not members of the European Union.

It was only because of Theresa May’s extreme interpretation of the referendum result that the United Kingdom left the European Union on the terms that it did.

And so we all now have to pretend that membership of the very Single Market that the United Kingdom shaped and crafted is somehow a Bad Thing.

It is a silly position to be in.

And as this blog has previously averred, we will only “move on” from Brexit when we can have a mature discussion about the merits of sharing a Single Market with the regulatory super-power with its hundreds of millions of customers next door.

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That Chinese embassy tweet – on international obligations and moral hazard

4th July 2022

Here is a tweet from the Chinese Embassy in Ireland:

Well.

What did the government of the United Kingdom expect?

This is not to say there is equivalence between the two situations – and many may say that a false equivalence is being made.

And this is not to say that the government of China – with its often horrific record on human rights, including in respect of the Uyghurs – are somehow the ‘good guys’ for tweeting in this way.

Certainly not.

But.

Again: what did the government of the United Kingdom expect?

The government’s reckless determination to legislate so that it can unilaterally breach the Northern Irish protocol was always going to provoke responses like this.

A government that openly and expressly wants to breach international law – especially its own recently negotiated agreements – cannot credibly insist on other nations complying with their international agreements.

Similarly, the sustained attack on ‘European’ human rights law by this government also makes it difficult for the United Kingdom to insist on international human rights standards by others.

(This is a point I make today in more detail over at Al Jazeera – where I post regularly putting forward a liberal constitutionalist perspective.)

The United Kingdom now also appears to be considering breaking World Trade Organisation rules on steel subsidies.

The United Kingdom government is showing the same lack of respect to international rules-based regimes as it does to domestic rules.

But the more we denounce or deride or disregard international agreements and instruments, the more we are creating a needless moral hazard.

It is all so daft – and so dangerous.

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In another universe, where the United Kingdom has also departed the European Union, a far more prudent government than the one we have currently would have spent the last few years building up its credibility as a party to international agreements and instruments.

After all, new international agreements are what the United Kingdom will need to rely on, now that it all alone on the world stage.

(Of course, such a prudent government may not have left the European Union in the first place.)

But instead of doing everything we can to build up our credibility as a potential partner to international agreements, we seem to have done everything we can to trash our international reputation as a serious party to international agreements.

And this was the worst possible time for us to convey such an insolent – almost infantile – attitude.

This is why we are now being trolled by the Chinese on social media.

And the United Kingdom government only has itself to blame.

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

Some thoughts about blogging and “style”

 1st July 2022

You will be somewhat bemused to know that this blog has featured in a style-guide for writing.

Yes, I know.

But it is true:

It would appear that this blog is regarded as having a distinctive style – and that the distinctive style is, in turn, regarded as being helpful to those interested in the topics covered by this blog.

So, on this Friday afternoon – as I put together some longer pieces for next week – I thought it may interest some of you for me to write something about why this blog has this distinctive (that is, peculiar) style.

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The main reason I write in one-sentence paragraphs on this blog is because it suits me – for it helps me organise and then express my thoughts.

With a one-sentence paragraph there is no hiding place for the author.

Either the one-sentence paragraph puts forward a worthwhile proposition or it does not.

With longer paragraphs – with multiple clauses and sentences – there is scope for waffle, inexactness, and evasion.

And so one-sentence paragraphs are a means of keeping an author sharp – they are a discipline.

Even if nobody read this blog – and one happy day constitutional law may again be so dull that nobody will read blogs about law and policy – I would still write in this style on this blog.

That may well be selfish, but it is true.

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And just as there is no hiding place in each one-sentence paragraph this also means there is no hiding place in a sequence of one-sentence paragraphs.

If there is a fault in the reasoning or the evidence, it will stand out.

The weakness in the chain will be evident – glaringly so.

This again helps me as a writer, but it also helps you as a reader.

If I make a mistake in my reasoning or with my evidence, you can quickly work out where I have gone astray.

You can either then dismiss the point I am seeking to convey or engage in the comments below (or on Twitter).

And so if my propositions are weak and/or my observations and illustrations banal and/or my arguments unsound, you will at least know where the fault is.

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Another advantage of short paragraphs – one-sentence or not – is that they are easier to read on the screen.

They are – for want of a better word – scrollable.

A reader may read five successive short paragraphs, but he or she may be put off from reading the same sentences in one long paragraph.

This is often not the case when reading from physical pages, but when you are reading from computer screen and other electronic devices, short crisp paragraphs are often more readable.

And this is especially helpful when there is a lot of ‘white space’ – and thanks to the generosity of my Patreon and Paypal supporters, this blog has not – yet – resorted to commercial advertising to blight the nice white space surrounding the words.

For to misquote a clever philosopher: there should be nothing outside the text.

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Another reason why I write like this is that I was brought up in tabloid-reading households.

You may not like such newspapers – and you may prefer broadsheets with their correspondingly broad passages.

But writing brisk short sentences about current affairs is a skill in and of itself, and for most of my childhood that is how I read both news and comment.

(The veteran newspaperman Neil Wallis once told me he had guessed from my blogging that I had been brought up in a tabloid-reading household, and he was right.)

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So there are advantages of blogging in this way, both for the author and for the readers.

But.

It is not the ‘right’ way.

And this is because there is no ‘right’ way.

There are instead ways of blogging that work for both writers and readers – and there are ways that do not.

Some of the gods of British blogging – such as Chris Grey on Brexit and Lawrence Freedman on strategy and war – provide highly readable, compelling blogs with detailed multi-sentence paragraphs.

As did the greatest of all British legal bloggers, the late Sir Henry Brooke – who, wonderfully, came to blogging after being a court of appeal judge.

His blog – which is thankfully still online years after his death – is a must-read for anyone interested in the law.

So there are a number of ways of blogging.

It all comes down to what suits the writer, and to what suits the readers (if any).

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But.

There are disadvantages of this blog’s approach.

Some propositions are complex and so require more than can be packed into one sentence.

You then get odd-looking long sentences that try so hard to keep everything in one sentence – but they are obviously contrived, and they are as awkward to read as they are awkward to write, and so should never have been started in the first place; and they often resort to sub-clauses just to keep to the somewhat artificial one-sentence rule.

Such sentences should be avoided.

As Orwell averred after offering his rules for good political writing:

“Break any of these rules sooner than say anything outright barbarous.”

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So the style of this blog is adopted mainly for the selfish reason that it helps me to think clearly and to organise and express those thoughts.

And if blogging in multi-sentence paragraphs helped me do the same, then I would blog like that instead.

One-sentence paragraphs are therefore not a model, but just a technique.

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Overall, the best guide to good writing is that it is not about the writing, but about the thinking.

If you think clearly, you will tend to write (and speak) clearly.

And if you do not think clearly, then no style-guide will help you.

For, as the techies say: garbage in, garbage out.

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

Yes, part of our [expletive] constitution is (or was) a letter written to the Times *under a pseudonym*

30th June 2022

This was an amusing exchange today on Twitter between two journalists:

Yes, part of our [expletive] constitution is (or was) a letter written to the Times *under a pseudonym*.

Because the United Kingdom does not have a codified constitution, the sources of our constitutional law (and lore) are in many places.

As is sometimes said, the United Kingdom does have a written constitution – it is just not written down in one place.

Some of the sources are cases and statutes, some of the sources are authoritative textbooks and guidance, and – in this case – it is a letter to a newspaper.

According to Professor Wikipedia (as I cannot find the letter on the Times website), the operative test of the 1950 letter is as follows:

“In so far as this matter can be publicly discussed, it can be properly assumed that no wise Sovereign—that is, one who has at heart the true interest of the country, the constitution, and the Monarchy—would deny a dissolution to his Prime Minister unless he were satisfied that: (1) the existing Parliament was still vital, viable, and capable of doing its job; (2) a General Election would be detrimental to the national economy; (3) he could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons.

“When Sir Patrick Duncan refused a dissolution to his Prime Minister in South Africa in 1939, all these conditions were satisfied: when Lord Byng did the same in Canada in 1926, they appeared to be, but in the event the third proved illusory.”

That last sentence is especially interesting because it reminds us that our monarch is also the monarch of elsewhere, and the author of the letter purports to draw a general view from instances of where the monarch’s power has been exercised (or not exercised) in other jurisdictions.

The basis of the letter is therefore not (it seems) what the author thinks should be the case, but a statement of what is practically the case.

Since this 1950 letter at least two things have happened which casts doubt on whether that is still a correct statement of practice.

The first is the further depoliticisation of the Crown – just as a statement from the 1830s or 1880s would not necessarily be a good guide to the position in 1950, a statement from 1950 may not necessarily be a good statement of the position in the 2020s.

The second was the 1975 Constitutional Crisis in Australia.

That crisis is still felt with a shudder in Buckingham Palace and elsewhere.

The fall-out from the 1975 crisis was such that it probably negates any prior general statements of about the position of the monarch in respect of a Prime Minister and practical politics.

It may therefore be that the 1950 statement is no longer a reliable guide to what the monarch understands to be the constitutional position in respect of a request by a Prime Minister for a dissolution.

And, furthermore, Parliament has also since 1950 enacted and then repealed the Fixed-term Parliaments Act, which presumably shows that Parliament intends the Prime Minister to have the power to ask for parliament to be dissolved.

But.

Two things should not be conflated.

The first thing is whether the Monarch is able to refuse a request for a dissolution, full stop.

The second is whether the 1950 statement is still a reliable expression of when the monarch can and cannot do so.

One of the merits of the Crown in the constitution of the United Kingdom is not so much the power which the Crown has, but the powers it prevents others from having.

There is something welcome in a Prime Minister not having absolute powers – even if the check and balance is a hereditary head of state.

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No doubt, the monarch may be more reluctant in the 2020s than before to refuse a request by the Prime Minister for Parliament to be dissolved.

But that does not mean that the residual power of refusal has been abandoned completely.

The Queen may still refuse a request by the current Prime Minister for a dissolution.

We just cannot today be certain what the criteria for such a refusal would be,

And if any well-connected and informed person can tell us the current position, please comment below – using an appropriate pseudonym.

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Should the “Bill of Rights” make provision for the right to an abortion?

29th June 2022

At Prime Minister’s questions today, the Lord Chancellor – deputising for the Prime Minister – was asked if the right to an abortion should be placed in the “Bill of Rights” currently before parliament.

He responded:

“…the position on abortion is settled in UK law and it is decided by hon. Members across the House.  It is an issue of conscience, and I do not think there is a strong case for change.  With the greatest respect, I would not want us to find ourselves in the US position, where the issue is litigated through the courts, rather than settled, as it is now settled, by hon. Members in this House.”

Is he right?

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In respect of abortions, the Labour MP Stella Creasy recently tweeted:

And, after the Lord Chancellor’s comments today, she tweeted the following:

Does she have a point?

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I happen to be strongly in favour of a woman’s right to choose to have an abortion – but the question here is not about the ultimate rights and wrongs of the abortion issue.

It is about whether the “Bill of Rights” should be put to this use.

From the Lord Chancellor’s perspective, the abortion issue is “settled” – at least in England and Wales – and here he presumably means the Abortion Act 1967.

And to the extent that abortion was legalised in England and Wales by an Act of Parliament, rather than by a (contentious) Supreme Court decision as it was in the United States, the Lord Chancellor has a little bit of a point about it having been determined by parliament, and not by the courts.

But it is not much of a point.

In part, the issue is not politically “settled” – and as recently as 2008 MPs were substantially divided as to the term limits for abortions.

And as Creasy avers, the position in Northern Ireland was not legally changed until very recently (with her astute and deft amendment to the Northern Ireland (Executive Formation etc) Act 2019):

And so, thanks to that amendment, there are now the Abortion (Northern Ireland) Regulations 2020.

Of course, making access to abortions legal is not the same as providing practical access to abortions, as many on Twitter pointed out in response to Creasy’s first tweet.

And some may say there is not much point providing legal access in Northern Ireland but not practical access:

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The “Bill of Rights” issue is not whether the substantive law on abortion should be changed – the substantive legal position has been changed.

The issue is whether a general right to an abortion should be placed in the “Bill of Rights”.

Here the position is less straightforward

On one hand, this blog has repeatedly warned of the folly of “enshrining” things in law.

This is because nothing can be meaningfully “enshrined” in law – as amendment or repeal is only a parliamentary exercise away.

And the “Bill of Rights” already has provisions that are legally meaningless – there is, for example, a proposed right to a trial by jury which goes no further than saying that if you already have a right to a trial by jury then you have a right to a trial by jury.

But.

If we are going to have a “Bill of Rights” then there is an argument that it should, well, contain some rights – and perhaps rights which have not been articulated plainly in other statutes.

And the Lord Chancellor’s objection that including such a right in the “Bill of Rights” would mean “the issue is litigated through the courts, rather than settled, as it is now settled, by hon. Members in this House” makes no sense.

A statement of a general right in the “Bill of Rights” would not, by itself, lead to any more litigation than there would be already under the current legislation.

The United Kingdom would not suddenly become the United States just by adding this right to the “Bill of Rights”.

Indeed, providing the right in primary legislation is pretty much the opposite of what has happened in the United States.

The real reason, one suspects, for the opposition of the Lord Chancellor and other government ministers, is that the “Bill of Rights” is not for this sort of rights.

The right to an abortion is the wrong sort of right for what they are seeking to do with the “Bill of Rights”.

It is not intended that the legislation will actually confer new rights – despite its portentous title.

The intention is that the legislation will make it more difficult for people to practically rely on their rights.

So, although one can doubt the efficacy of “enshrining” things in domestic law, Creasy’s proposed amendment perhaps serves a helpful purpose in exposing the “Bill of Rights” as not being about rights at all.

And if such a right is included in the “Bill of Rights” then it may lead to the issue being more “settled” than the 2008 debates and the Northern Ireland experience indicates it to be.

If we are to have a “Bill of Rights” then this is presumably the sort of right – highly relevant to actual people – that should be included.

But what do you think?

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For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

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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.