Author: David Allen Green

Three ways of looking at constitutions: institutions, functions, tensions

18th September 2021

Today’s post sets out something which has long interested me about constitutions, but I do not think I have set out in one place before.

It is about different ways one can approach thinking practically about constitutions – and why one particular approach is to be preferred.

By practically, I am making distinction with thinking theoretically or academically.

For such clever stuff other writers and texts are available.

*

There seems to be three broad ways of thinking practically about constitutions.

*

The Institutional Approach

The first approach is to have regard primarily to particular institutions – say the crown (which can cover various functions and other institutions); the prime minister and the cabinet and the Whitehall departments; the Westminster parliament; the various courts the devolved administrations; local government; the security agencies; the established church; and so on.

Here an account of, for example, the constitution of the United Kingdom will set out how all these institutions work together or muddle together.

*

The Functional Approach

The second approach is have regard primarily not to institutions but to functions – and the usual typology here is to separate out executive, legislative and judicial functions.

In many constitutions – especially the sort you and I are most familiar with – these functions will correspond generally with various institutions.

So the legislative function corresponds with, say, the Westminster parliament or the federal congress in the United States, and vice versa, and so on.

The advantage of this functional approach over the institutional approach is that it recognises that certain institutions can perform more than one function – and that a function may be performed by more than one institution.

Central government in the United Kingdom, for example performs an executive function (obviously); but also by issuing secondary legislation and various rules, will perform a legislative function; and in determining individual cases, will perform a judicial (or quasi-judicial) function.

By concentrating on what is being done – rather than on which institution is doing it – this functional approach is often more useful than an institutional approach.

But.

*

The Limitations of the Institutional and the Functional Approaches

By setting out institutions or even functions, there is the risk of having a limited understanding about how constitutions operate (or should operate) in practice.

You can end up having that naive notion that ‘all which is needed‘ for all political ills to be remedied is for there to be a written (that is, codified) constitution.

The simplistic notion that if only one set out the institutions of the state – or the functions of the state – with sufficient elegance in a single document then everything would be fine.

I have always found that approach not to be compelling – though for a long time I was not certain why this was the case.

But I think it is because neither the institutional nor the functional approach prioritise dealing with tensions and conflicts – that is, checks and balances, that prevent one group of people with public power doing whatever they want.

The institutional and functional models, for me, appear to regard tensions and conflicts as bugs not features of a constitution.

The (unspoken) notion is that, if things are going well, and a particular institution is doing what it should do, or those performing a particular function are doing as they should do, then there will be no conflicts.

Everything would be fine and neat.

Of course: when there are tensions and conflicts they should be regulated in some way, but that would and should not the the constitutional norm.

The happy idea here seems to be that if you just put in place the right written (that is, codified) constitution then there would be no or few tensions and conflicts.

*

The Tensions and Conflicts Approach

I prefer a third approach which does not see tensions and conflicts as a regrettable afterthought in constitution-mongering, but as central to any worthwhile constitutional arrangement.

This approach asks the following hard-headed questions.

How are those who make rules checked in practice, and by whom and on what basis?

How are those who make decisions checked in practice, and by whom and on what basis?

How are those who determine the disputes of others, or who decide on the rights and obligations of others, checked in practice, and by whom and on what basis?

How are those who seek to use coercive force – either in various uniforms or otherwise – checked in practice, and by whom and on what basis?

How are those who seek to invade the privacy of others – for whatever reason – checked in practice, and by whom and on what basis?

And so on.

This approach cares little for the institutional trappings of those seeking to impose power on others.

This approach is unsentimental about grand-sounding institutions such as the crown or parliament or the courts – and sees instead people, stripped of their glamours and baubles, who are seeking to impose their will on others.

This approach also does not assume that there is some perfect manner where those who perform functions – executive, legislative, judicial, or otherwise – can be entrusted to just get on with their jobs – with the rest of us just deferentially nodding along.

This approach instead makes conflict and tension central, rather than peripheral, to an understanding of any constitution.

It avoids the presumption that those who perform functions – executive, legislative, judicial, or otherwise – should get their way, unless there is an exceptional reason for them not to do so.

Of course, by recognising that there are such tensions and conflicts there is, in turn, the risk of stalemates and blockages.

But a practical constitution would set out how each of these tensions and conflicts are to be managed – rather than pretending that they do not exist, or are exceptional.

*

The question of a written (that is, codified) constitution

Elsewhere I have set out why – rare for a liberal – I am dubious about written (that is, codified) constitutions.

It seems plain to me – if not others – that written (that is, codified) constitutions can be illiberal devices, that will be more likely to entrench executive power than limit it.

But if there were to be a written (that is, codified) constitution in the United Kingdom, it should not start with institutions or functions but instead with checks and balances.

It should identify the foreseeable points of conflict and tension and then set out how they should be resolved and on what basis, and then work backwards from there.

Just like a well-drafted commercial contract starts from where there would be obvious disputes and works backwards to allocating rights, obligations and risks accordingly.

The problem with any worthwhile written (that is, codified) constitution for the United Kingdom – that sets out the practical ways in which those with any power can be limited – is that those with power would never allow it to be put in place.

*

Why the Tensions and Conflicts Approach should be used to evaluate any constitutional reform

But even without a worthwhile written (that is, codified) constitution that starts with tensions and conflicts and works backwards, there is (I aver) merit in approaching any proposed constitutional reform or political change not by asking about institutions or functions but by asking how will abuse and misuse of the reform or change be managed?

That is to assume, as a given, that any proposed constitutional reform or political change will be abused and misused by those with power.

For it is by expecting the worst, and acting accordingly, that one can accomplish any sustainable constitutional improvement.

And it is this dismal, hard-headed, realistic approach that (I aver) should be the basis of any practical consideration of constitutional questions.

**

Hello there –  if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

Please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

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.

Comments will not be published if irksome.

Raab’s choice: repealing the Human Rights Act or a being a genuinely reforming Lord Chancellor ?

17th September 2021

Over at Joshua Rozenberg’s blog there is further discussion of the appointment of Dominic Raab as lord chancellor – following my (well-received) post yesterday.

Rozenberg makes two solid, good points.

The first – which I did not cover, but is obvious – is the paucity of junior ministers in the house of commons to support Raab.

Either by design or by accident, this at a stroke undermines the position of the new lord chancellor and deputy prime minister.

It may even indicate that Raab neglected to make insistence on this point before his appointment – and that for him the form and style of ‘deputy prime minister’ was a higher priority than the ‘boots on the ground’ of actual junior ministers in the commons.

A good spot by Rozenberg.

The second – which I refer to but Rozenberg spells out in more detail – is about the future of the human rights act.

Raab now has a decision – perhaps a huge decision.

Will he choose to spend his (perhaps) limited time as lord chancellor in his eternal quest to repeal the human rights act – a task which will be complicated and time-consuming and maybe ultimately futile.

Or will he choose to spend his limited ministerial time dealing with more immediate and everyday issues facing the ministry of justice – from prisons to effective criminal justice.

What will be Raab’s priority?

Does Raab want to be known as the politician who repealed the human rights act?

Or does he want to be a genuinely reforming lord chancellor, addressing a justice system in crisis and near-collapse?

For he is unlikely to have the time and resources to do both.

**

Hello there –  if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

Please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

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.

Comments will not be published if irksome.

 

The significance of the appointment of Dominic Raab as Lord Chancellor and Secretary of State for Justice

16th September 2021

Yesterday one politician replaced another as lord chancellor and secretary of state for justice – one of a number of ministerial changes in a reshuffle.

So what?

What, if anything, does this change signify?

*

The outgoing lord chancellor was Robert Buckland, a conservative member of parliament, former solicitor general, and experienced criminal barrister and former ‘recorder’ (a part-time judge) in the crown court.

He had been in office for just over two years – and there are good, bad and ugly aspects to his term.

The good was that, in large part, the justice system was not dragged into the government’s infantile ‘culture wars’.

A fundamental political assault on judicial review fizzled down to almost nothing (see here).

To the extent to which this was down to his political interventions and tactics, all sensible people should be grateful.

The bad was that the wider justice system is in a bad state, with some parts – especially criminal justice – almost in chaos, with delays of years for basic matters.

This predicament was admitted by Buckland in his resignation letter:

You will see he expressly says that there have been ‘years of underfunding’ – and here it should be remembered that the conservatives have been in office for eleven years.

The ugly is his failure to check the explicit attempt by the government to break the law with the internal markets bill.

Others resigned: the advocate general Lord Keen resigned, as did the treasury solicitor Jonathan Jones.

It was an issue on which a lord chancellor of any integrity should have resigned too.

This is because the lord chancellor has an obligation, reflected in statute, to uphold the rule of law.

The moment the bill was published, the lord chancellor should have resigned.

There was no good reason not to do so.

But Buckland chose to stay on, in breach of his constitutional duty, and – in effect – gave cover to a government explicitly committed to breaking the law.

And his reward for this misplaced political loyalty?

He was casually sacked just to create a vacancy for a minister who had failed in another department.

Buckland will now spend the rest of his political and legal career justifying why he did not resign on the spot.

*

Buckland’s replacement is Dominic Raab, another conservative member of parliament.

Raab has already served as a minister at the ministry of justice and has a legal background.

Yesterday, political sources told the political editor of the BBC that Raab was ‘a senior lawyer’, which the political editor then repeated as a fact without checking.

Raab is, in no meaningful sense, ‘a senior lawyer’.

This is not to make a political or partisan point, just a statement of fact.

He left the legal profession after a handful of years to go into politics.

There is certainly nothing wrong with that – and ceasing to be a practising solicitor can be a wise thing to do.

And Raab does have good legal credentials – prizes, a higher degree, and experience at a well-regarded city law firm and at the foreign office.

But he was only ever a junior lawyer.

*

A case can be made for Raab’s appointment being a good thing.

He is a qualified lawyer – and many have complained when the lord chancellor has not been a qualified lawyer – with a good academic and professional background.

He is also deputy prime minister – which means that he will perhaps be in a stronger position in negotiations with the treasury so as to correct the historic underfunding described by his predecessor.

And he has a sincere (if haphazard) belief in rights, as shown by his 2010 book and his emphasis as foreign secretary on human rights for those under other regimes.

Sudan:

Syria:

Sri Lanka:

Belarus:

China:

And Russia:

There are many others.

Raab has tweeted about human rights dozens of times as foreign secretary.

And only, it seems, three times about Brexit – even though he was a strong Brexit campaigner and former Brexit secretary.

*

So what can possibly be wrong about this appointment?

Legal background, qualified lawyer, influential within cabinet, genuine interest in human rights (at least for foreigners).

Why was a legal journalist able to (correctly) tweet this?

*

Part of the answer is that – notwithstanding his interest in human rights abroad – Raab has a fixation with repealing the human rights act in the United Kingdom.

And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.

If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.

Raab may also be tempted to re-open the judicial review question, disregarding Buckland’s more conciliatory approach.

*

The real opposition to Raab’s, however, is more political than legal – his brash and confrontational political approach tied to a sense that there is little substance.

And so on.

*

But.

Every new lord chancellor and justice secretary should be given a fair chance.

For example Michael Gove was a surprisingly good lord chancellor and justice secretary – and not just because he was not Chris Grayling.

Perhaps Raab will also turn out to be a surprisingly good lord chancellor and justice secretary.

Perhaps.

*

But.

The real significance of the appointment is not about personalities.

It is about the office of lord chancellor.

This office used to be occupied usually by a senior lawyer-politician, with no further political ambitions.

But since the creation of the ministry of justice under Tony Blair and Charles Falconer – which combined the old lord chancellor’s department with parts of the home office – the department has generally been under politicians on the rise.

And now it is being given to politicians on their fall.

Here, a consolation prize for being sacked as foreign secretary.

Just another spending department with just another politician in charge.

Yet: the lord chancellorship is special – or should be.

The lord chancellor has a duty to protect the rule of law in government and the independence of the judiciary.

And here there will be a tension with Raab’s appointment.

For as deputy prime minister, Raab will be answerable in parliament for the government as a whole (in the prime minister’s absence).

He will also, if he wishes, have a dominant position on any cabinet committees he choses to attend.

He will, in essence, be part of the thing that that lord chancellor is there, in part, to protect against.

No other deputy prime minister has also been lord chancellor.

This tension means potential problems ahead.

*

After the creation of the ministry of justice it was perhaps only a matter of time before it became just another political department.

And to this extent, the appointment of a politician such as Raab to the office in these circumstances was also just a matter of time.

But this does not take away from some of the tensions – perhaps contradictions – set out above.

The appointment is certainly good for law and policy commentators.

There will be a lot to commentate on.

It may not turn out so well for law and policy.

**

Hello there –  if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

Please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

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.

Comments will not be published if irksome.

Some refreshing comments against the glamourisation of serial killers and the woo-woo of criminal profiling

15th September 2021

One of the ugliest aspects of modern culture is the glamourisation – and monetisation – of serial killers.

*

In From Hell by Alan Moore and Eddie Campbell, about the Whitechapel murders, an opportunistic salesman sets up stall after the body of Catherine Eddowes is found in Mitre Square:

We then go to the reaction of the investigator Detective Abberline:

And then, in Moore’s footnotes to the story:

Quite.

*

The best thing, of course, to read on those killings is Hallie Rubenhold’s The Five.

Here Rubenhold pulls together the extant information about the lives of each of the victims for a sequence of compelling social histories.

Rubenhold explains how the victim’s social and economic predicaments – especially the then-common outdoor sleeping of the Victorian poor – made them easy to kill.

And also how social prejudices about (supposed) prostitution meant the murders were not taken seriously.

*

In The Collectors episode of The Sandman, Neil Gaiman and Mike Dringenberg depict a convention of serial killers, with all their braggy self-importance.

But at the end of the convention these proud killers are stripped of their glamours:

And they disperse as pathetic losers.

*

It is not just comics.

The serial killer as a figure whose ‘mind’ we are supposed to ‘enter’ is a staple of modern fiction – and modern non-fiction.

Take the pseudo-science of ‘profiling’.

It certainly makes great film and television:

But profiling is mainly woo-woo – at least to the extent to which it is based on individual subjective assessments rather than broad statistical analysis.

(See here and here – but also here.)

And the glamourisation – and monetisation – of serial killers continues.

*

So it was against this background when I stumbled on the following YouTube video.

I was expecting more of the same Cracker and Mindhunter tish-tosh.

How wrong I was.

Instead of the usual pseudo-science, Professor David Wilson takes us on a refreshingly sensible and unimpressed guided tour of well-known and less well-known depictions of serial killers.

This is Wilson on Lecter:

“I have encountered serial killers who have tried to scare me, but I wouldn’t be scared by Anthony Hopkins.

“I’d have laughed, frankly, if you’d told me about fava beans and a nice Chianti.”

The video is worth watching from beginning to end – and the end is brilliant (here is the video at 27:54):

Wilson refers to the “trope that we see in a lot of Hollywood movies, that people like me would try and enter the mind of a serial killer.”

He then concludes the video:

“I am not interested in what motivates a serial killer.

“I am much more interested in who it is the serial killer is able to kill.

“If we concentrated our attention on the groups that serial killers constantly target, we would do a lot more to reduce the incidence of serial murder in our cultures, as opposed to any number of offender profilers who claim that they can ‘enter the mind of a serial killer’.

“If you really want to do something to reduce the incidence of serial murder in our culture, let’s challenge homophobia, let’s have a grownup debate about how we police those young men and young women who sell sexual services, and above all, let’s try and work out why the elderly are so vulnerable in our culture because they don’t have a voice and have no power.”

Quite.

*****

If you value this free-to-read and independent legal and policy commentary please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of any amount as a one-off, or of £4.50 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is usually published at about 9.30am UK time – though some special posts are published later.

*****

You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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.

Comments will not be published if irksome.

What is this “Article 16” that the United Kingdom is threatening to trigger?

14th September 2021

The Brexit minister David Frost has said that he is considering triggering article 16 in respect of the ongoing discussions between the United Kingdom and the European Union.

 

*

This sounds all very portentous.

But what does it actually mean?

What is article 16?

The blogpost below is based on an extract from an earlier longer explainer posted on this blog back in January 2021 (when the European Commission clumsily and perhaps inadvertently seemed to trigger article 16 and then promptly untriggered it).

*

Let’s begin with what is an ‘article’.

One of the blessings of Brexit is dealing with ‘articles’ of international legal instruments – most famously article 50 of the treaty on European Union.

The word ‘article’ is somehow grander than the more mundane ‘section’ and the everyday ‘clause’.

Indeed articles tend to be more self-contained as legal provisions – sometimes like micro legal instruments within macro legal instruments like treaties.

And article 16 – together with a dedicated annex – is such a micro legal instrument.

*

Article 16 is part of the Northern Irish protocol, which in turn is a protocol to the withdrawal agreement.

Instruments within instruments within instruments.

Article 16 provides in its entirety (and you should read every word, as they will matter): In essence: the ‘if [x] then [y]’ here is ‘if [there are certain difficulties in the application of the Northern Irish protocol] then [appropriate safeguard measures can be taken]’.

*

The article is entitled ‘Safeguards’ – but straight away you will see that the provision is itself subject to its own safeguards – and this is important because, as you can see, what is or can be a ‘safeguard measure’ is not defined.

First.

In paragraph 1, the trigger for the safeguards has to be a serious situation that is likely to persist.

Second.

It then provides that any safeguards will be ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular serious situation.

Third.

And ‘priority’ shall be given to what measures that cause the least disturbance.

One, two, three.

So: triggering article 16 does not mean anything goes.

Anything Frost proposes will have to meet these three substantive tests.

*

And there is more.

In paragraph 2, any imbalances caused by the uses of the safeguards can be addressed with counter measures: so the article is not a unilateral tool.

If the United Kingdom takes measures under article 16 then the European Union can take countermeasures too.

Paragraph 3 then states that a prescribed process has also to be followed, as set out in an annex.

Strictly speaking: triggering article 16 does not trigger the right to take safeguard measures, but triggers a process that may in turn lead to such measures.

The annex supplements the substantive conditions on the use of Article 16 safeguards with procedural protections (and, again, this provision should be read in full): In essence: notification, talking shop, delay for a month, adoption of measures, further notification, regular consultations on measures, reviews of the measures.

Even in the event of ‘exceptional circumstances’ under point 3 of this annex, there is still a procedure to be followed.

Safeguards within safeguards within safeguards, and so on.

Article 16 ain’t no weapon – it is a remedial tool.

It really is not something to ‘threaten’.

*

In summary: invoking article 16 is not to be done casually or by mere oversight.

There are many substantive and procedural conditions to be fulfilled before it can be invoked.

And unless those conditions are met, then article 16 measures are not available.

Even when all the conditions are met, the scheme of the article and the annex is that there would be a collaborative review-and-consultation to the use of the measures.

All this is – or should be – obvious from the title of the article: ‘Safeguards’.

And not Reprisals.

*****

If you value this free-to-read and independent legal and policy commentary please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of any amount as a one-off, or of £4.50 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is usually published at about 9.30am UK time – though some special posts are published later.

*****

You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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.

Comments will not be published if irksome.                          

High slogans and low reality: the point and counterpoint of Brexit

13th September 2021

Like a bouncing ball we go from the high slogans to the low mundane – or grim – reality of Brexit.

Take, for example, this from businessman and former politician Archie Norman:

In translation:

– taking back control was and is ‘pointless’, and

– leaving the single market was and is ‘pointless’.

For what Norman here describes as “pointless” is the direct, natural and necessary consequence of both taking back control and leaving the single market.

What he describes is Brexit in its everyday reality.

This is what the slogans really meant when converted to actual practice.

*

Here is another example, for the great immigration law expert Colin Yeo:

In essence: if the French don’t cooperate, then the home secretary’s’s ‘turn around’ migrant boat policy is not only vile and inhumane – it cannot actually work.

Again, this is the reality of taking back control.

*

Both the examples above are crash-courses in the value of multilateralism in a complex world – and of the banality of autarchy.

By taking back control the United Kingdom has lost the means of exercising control – whether it is the terms of trade, or its borders, and so on.

And this is not a surprise.

For taking back control exists on the plane of slogans and not on the messy plane of reality of the world in which we live.

**

Hello there – please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.

If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

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.

Comments will not be published if irksome.

The strange death of ‘euro-scepticism’

12th September 2021

Once ‘euro-scepticism’ was a big thing in British politics.

Parties and politicians, as well as the media, competed with each other to be disdainful of the European Union project, but without calling for outright departure.

Anyone with an absolute view on the merits of the United Kingdom’s membership of the European Union were regarded as marginal if not eccentric – whether ‘pro’ or ‘anti’.

The conservative party, for example, had a steady stream of defections to the liberal democrats of ‘pro-EU’ politicians, and the referendum party came and went.

But about ten years ago ‘euro-scepticism’ disappeared, to be replaced by those seeking outright departure.

Why did this happen?

Well, one possibility is – paradoxically – the European Union stopped pushing for more powers and competencies.

To an extent ‘euro-scepticism’ was reactive: a response to treaty after treaty of expansion: Maastricht, Amsterdam, Lisbon.

And once the treaties stopped, then ‘euro-scepticism’ stopped – for it did not serve the purpose of a brake.

There still has not been a major European Union treaty since Lisbon, signed in 2007.

In respect of major treaties, the European Union has been in a steady state since Lisbon.

And there has been no real taste for one.

(Indeed, the fiscal pact of 2012 was done outside the European Union framework.)

And when the movement to ever close union ended – at least at treaty level – then British ‘euro-scepticism’ flipped into Brexiteering.

There were, of course, many other factors around ten years ago that contributed to Brexiteering.

But one cause must have been the collapse in ‘euro-scepticism’.

Few in 2016 wanted to ‘be in Europe but not run by Europe’ – as the old slogan said.

And ‘euro-scepticism’ was never a positive message such would win a binary referendum.

Not many would vote Remain because it offered only mild opposition to the European Union as opposed to Leave’s explicit hostility.

Polarisation on the European Union question did not suit the tradition of ‘euro-scepticism’.

But.

It can also be averred that ‘euro-scepticism’ had been successful – that is, if success is taken to mean a sequence of secured outcomes.

The United Kingdom had secured the benefit of opt-outs – from the Euro and freedom of movement to justice and home affairs.

On this basis, it is hard to say ‘euro-scepticism’ was a failure.

But opt-outs can only take you so far without touching upon the ultimate questions of membership.

By 2015 there was little left to opt out from.

The ‘re-negotiation’ was a flop.

So perhaps ‘euro-scepticism’ died in part because there was no longer anything left that it could achieve.

And also perhaps because that before 2015 it had been too successful.

**

Hello there – please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.

If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

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.

Comments will not be published if irksome.

9/11 x 20

11th September 2021

The general lot of law and policy in the last twenty years has not been a happy one.

Torture used and regularised; an invasion and occupation that not only had no legal basis but also greatly discredited politics itself; the growth of the surveillance state; and the general illiberal turn to nationalistic populist authoritarianism.

All this followed the terrorist attack twenty years ago today.

That these things followed that attack cannot be disputed, as a matter of chronology.

*

But what about causation?

Did 9/11 cause the illiberal turn?

Anyone with an interest in the subject will have a view.

But I am afraid I think the illiberal turn would have happened anyway.

There was never any rational connection between 9/11 and the Iraq invasion – and so there would have just been another pretext instead of the ‘war on terror’.

Those with power will torture if they can get away with it – and how the United Kingdom so readily participated in torture would not surprise anyone with knowledge of what the British did in Kenya and Northern Ireland in the post-war period alone.

Those with power did not need a reason to use and regularise torture: they just need an excuse.

And the developments in computer and communications technology since 2001 would have meant the state seeking more surveillance powers, regardless of the attack on the twin towers.

So in essence: it is plausible that all the bad things in law and policy that have happened since 9/11 would have happened anyway.

****

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.

Comments will not be published if irksome.

The sordid return of ‘the will of the people’

10th September 2021

This government is abandoning manifesto commitment after manifesto commitment.

This is notwithstanding that, in a representative parliamentary democracy, it is only by manifestos that we have anything that approximates to mandates for a majority party returned in a general election.

Such manifesto commitments are not, it seems, binding commitments on the government.

But.

Elsewhere in government, the ‘will of the people’ is being invoked – and perhaps in the mist sordid and disgusting way imaginable to any any sensible and humane person:

Because of this policy, fellow human beings will die.

There will be those who will be dead tomorrow who otherwise would not be dead but for this policy.

This policy is not in any manifesto.

The invocation of ‘it is what people want’ is nothing more compelling than speculation.

But it is enough.

Because ‘it is what people want’ then other people will die.

This is a ‘pick and choose’ approach to representative democracy.

Things that had been explicit in a manifesto on which people people had actually voted are casually discarded.

And by reason of the slogan ‘it is what people want’ lives of fellow human beings will be just as casually discarded.

The common feature is executive arrogance.

Ministers believe they can do as they wish to anyone, regardless of actual mandates.

This does not mean well for our democracy.

Brace brace.

**

Hello there –  if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

Please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

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.

Comments will not be published if irksome.

How the government has bounced this week’s tax hike through parliament like it bounced through the Brexit deals

9th September 2021

This week’s political excitement about social care and national insurance seems familiar.

*

If you set aside all the noise and drama, all that has happened this week is that the government has – at speed – got a huge tax increase past its political and media supporters.

Indeed, a number of those very political and media supporters have clapped and cheered.

There will be no meaningful reform to social care.

There has been no meaningful scrutiny of any proposals.

And, as this blog averred recently, it is political and legal nonsense to say that the extra revenue being raised will be ‘ring-fenced’ for health or social care.

Had this not been done at speed then the implications of the huge tax hike and lack of policy substance may have become apparent.

It has simply been a political smash and run.

A deft exercise in getting something unpalatable past your own political and media supporters.

And it has worked – if you understand it in these cynical terms.

*

What makes this seem familiar?

Well.

It is almost the same model of what happened with the Brexit exit and relationship agreements.

They too were rushed through parliament so as to prevent any useful scrutiny from the government’s media political supporters.

The brisk pace meant that many issues were hidden from view – until it was too late.

And, at the time, the government’s political and media supporters clapped and cheered too.

Many are not clapping and cheering now.

**

Hello there –  if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

Please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

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.

Comments will not be published if irksome.