Author: David Allen Green

The excuse of ‘the king’s evil counsellors’ – Part II

18th July 2021

Over three months ago, his blog had a brief post about ‘the king’s evil counsellors’.

Here it is:

And: he still is – or at least he seems to be.

But: is he?

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Here is a tweet today from a news journalist about the latest of many rudderless u-turns:

Yet again: the kings evil counsellors.

The plausible deniability of the ‘kings evil counsellors’ is, of course, a thing as old as kingship.

But with the current prime minister, however, perhaps there is a certain plausibility to this plausible deniability.

It is plain that there is little or no central direction – the only driving force from the prime minister is that he wants to get away with things and he is happy for his ministers to get away with things too.

In a strange and curious way, we now have something like the (supposed) classic model of cabinet government in the United Kingdom: the ‘government of departments’.

Each minster seems to be doing exactly what they want.

And, similarly, each Number 10 adviser seems also to be doing what they want.

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The premise of the old notion of the ‘kings evil counsellors’ is that the ruler would be horrified to know what was being done in their name.

The reality, of course, would be that the king knew full well – the counsellors were just being set up to take the blame.

The current prime minister seems to go one step further: he just does not seem to care.

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‘Forgive us our trespasses’ ‘Trespassers will be prosecuted’ What is the law of trespass about? And what could it be about?

17th July 2021

My blogging and journalism tends often to be about public law – that is the law relating to or enforced by the state: constitutional law, criminal law, and so on.

But my primary interest in law – at least on a day-to-day basis as a solicitor – is the law of obligations and of (intellectual) property.

And one concept that has long fascinated me is the law of trespass – and how it contrasts with other areas of common law such as contract and tort.

So over at Prospect magazine this month, my column is on what the law of trespass is about – and what the law of trespass could be about.

In the event of any questions or comments on that column or the topic generally, do set them out below.

 

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‘No – not that free speech’ – How ‘free speech!’ advocates can quickly get tied up in knots

16th July 2021

This was a remarkable tweet:

You really would need a heart of stone not to laugh like a drain.

It would appear GB News are in favour of ‘free speech’! – but not that free speech.

It was wrong sort of free speech.

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How do those who say they are arguing from first principle get into such knots?

It is a problem in constitutional matters too.

Some of those who supported Brexit did so, they say, to ‘return power back to Westminster’.

But such Brexiters generally said nothing (or little) about a Brexit-supporting executive seeking to take power from parliament – for example in ensuring that the article 50 notification was done on the basis of a parliamentary act rather than the prime minister’s discretion.

That was the wrong sort of parliamentary supremacy.

And so on – there are many other examples.

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The answer is, I think, about how people like to invoke principle in political, policy and legal matters.

Say you like [x] or are opposed to [y].

You can say ‘I like [x]!’ or ‘I oppose [y]!’.

You could, but it may not get you very far.

And so you gild the utterance: ‘[x] is good!’ and ‘[y] is bad!’.

But even that can not be enough, and so you invoke principles.

And you end up saying that liking or disliking [x or y] is matter of ‘free speech!’.

So, take for example that a person may dislike a certain minority [z] and would like to say so.

They could say: ‘I dislike [z]’ – but they not want to say this, at least aloud in polite company

Or: ‘[z] are bad people’ – though again they may be deterred.

And so they resort to ‘disliking [z] is quite frankly a matter for an individual quite frankly, and quite frankly people should have the right to say so, quite frankly, as it is free speech.’

Here, the resort to principle to being used to frame a proposition that the person making the utterance would not want to say in a more direct form.

But.

The problem is that the person making the utterance is invoking principle as a matter of rhetorical convenience.

And this is an error.

For the principle of free speech is, well, a principle.

And as a principle it has application generally, if not absolutely.

And so it applies to utterances with which you will strongly disagree.

This is why those who (say they) believe in free speech as a matter of general or even absolute principle end up so quickly in knots.

How those who want to parade their anti-woke offensiveness are (genuinely) horrified by the taking of the knee, or a white poppy, or inclusive language employed by a third party.

It is because their resort to principle is a cynical rhetorical device.

Their only interest in ‘free speech!’ is that it allows them to make utterances that, for whatever reason, they do not wish to make in more direct ways.

They do not want to say that they like [abhorrent sentiment] or that [abhorrent sentiment] is good.

They instead just want to say it and get away with it, but without any implications.

Last week I even had a tweeter telling me that the England footballers expressing political opinions should not be selected for their clubs or country – and when I looked at their bio, it said ‘supporter of free speech’.

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This, of course, is not just a problem with those with which you disagree.

Anyone engaged in policy or legal or political discussion can make the same mistake.

And this is because we all seek to gild our utterances, as it is a natural temptation to big up one’s opinions.

The best guard is to only use first principles in circumstances where you know that you would also invoke the same principle when it was something applied to something with which you dislike, or even oppose.

The resort to principle – rightly – can have considerable purchase power in a discussion, but that power also can be devalued quickly.

And in particular: the principle of free speech has no real purchase if it is only to gild sentiments to which you do not object.

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The best of questions and the worst of speeches – a practical example of the accountability gap in UK policy-making

15th July 2021

When the question came, it was superb.

Take a moment to listen to this question to the prime minister from the Sky political editor Beth Rigby – and hold on to hear her follow-up.

As a question from a political journalist to a prime minister, the question could not be bettered – in form, content, or delivery.

Superb – but not exceptional.

The fact is that there are some outstanding journalists – in the United Kingdom and the United States – capable of asking excellent questions.

In the United States even before the election of Donald Trump as president in 2016, many of his material and manifest lies, faults and failures were already in the public domain – thanks in part to diligent investigative journalism.

But it did not matter.

A sufficient number of voters clapped and cheered for Trump anyway for him to win the electoral college, if not the popular vote.

Similarly, sufficient number of voters clapped and cheered for Boris Johnson and his governing party to win the general election in 2019, if not the popular vote.

And Johnson’s material and manifest lies, faults and failures were also in the public domain.

It did not matter.

It is a public good – that is a good that does not need any further justification – that journalists as brilliant as Rigby and others ask these questions.

But it is not enough.

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How do politicians get away with it?

Here we must turn to the speech that the prime minister gave before the press conference.

The speech was a policy speech – not a political speech to a party conference or a rally.

The speech was also a formal speech as prime minister, with the text formally published on the government’s official website.

And it was perhaps the worst formal policy speech ever given by a prime minister.

Look at the state of this:

Here is just one sentence:

There are prisoners in Belmarsh with shorter sentences.

The speech is gibberish, for sentence-after-sentence and paragraph-after-paragraph.

And even if you want to give the benefit of the doubt – as not even lawyers and legal commentators speak as precisely as they write – this is not an unofficial transcript but the version approved for formal publication on the official government website.

And regardless of form, there is not a single concrete policy proposal in the speech.

Just words, words, words.

How does he get away with it?

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We have a juxtaposition, a tension – if not a contradiction – in our political and media affairs, and it has implications for all policy-making and law-making.

We may well have first-rate media questions – but we also have low-level political accountability.

Why?

Because politicians with executive power – at least in the United Kingdom – rarely have to be publicly accountable when it can really matter.

A prime minister can brush off a journalist’s question.

A prime minister can brush off the leader of the opposition.

A prime minister with a majority, and ministers generally, are not publicly accountable to anything in any meaningful way for their policy-making and law-making.

Even general elections are not a real check or a balance – as the government reneging on manifesto commitments show.

There is, of course, political accountability to their own back-benchers – but that is rarely in respect of specific policies or laws, and that accountability is informal and often hidden in private meetings and communications.

That is not public accountability.

And so we have the concurrent spectacle of the best of questions and the worst of speeches, and there is little or nothing anybody can do to make the situation any different.

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Why the government did not ‘override’ an Act of Parliament over overseas aid – the concerning thing is that the government acted in accordance with the law

14th July 2021

Yesterday there was this stunning tweet from Lord Falconer, the experienced QC and a former lord chancellor – and now a Labour spokesperson.

There are many things to be said about the government’s decision on this – for example there is what former prime minister John Major said:

There is nothing positive to say about this illiberal and misconceived decision, and it should be opposed by every sensible person.

But what Falconer said appears incorrect – either in the head tweet or taking the thread as a whole.

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The correct position, as has been previously set out on this blog, is that the obligation under the International Development (Official Development Assistance Target) Act 2015 is not an absolute obligation.

The act provides for a statutory target of 0.7% of gross national income is sent on overseas aid – but this has no legal force and is certainly not absolute.

Section 1(1) provides:

“It is the duty of the Secretary of State to ensure that the target for official development assistance (referred to in this Act as “ODA”) to amount to 0.7% of gross national income (in this Act referred to as “the 0.7% target”) is met by the United Kingdom in the year 2015 and each subsequent calendar year.”

Section 1(1) is subject to wide wide exceptions in section 2(3):

“(a) economic circumstances and, in particular, any substantial change in gross national income;

(b) fiscal circumstances and, in particular, the likely impact of meeting the target on taxation, public spending and public borrowing;

(c) circumstances arising outside the United Kingdom.”

In view of these exceptions, the section 1 cannot be called ‘absolute’.

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To take advantage of an exception, the government has to lay a statement before parliament.

This is set out in section 2 of the act, which – of course – as much a part of the legislation as section 1.

And that is what the government did yesterday – the statement is here, and it states:

‘The government will continue to act compatibly with the International Development (Official Development Assistance Target) Act 2015, under which accountability is to Parliament. The Secretary of State will lay a statement in Parliament in accordance with section 2 of the Act in relation to each calendar year in which the government does not spend 0.7% GNI on ODA.’

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The legal problem with the international aid cut is not directly with what the government did – for they have complied with the act.

The problem is with the sloppy drafting of the legislation, which makes the target obligation nothing more than a nice-to-have.

The public understanding of law is a valuable but fragile thing and such misleading comments undermine the public understanding of law.

The correct response to sloppy legislation is not sloppy commentary.

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As a post script, even the section 2 exceptions do not really matter as section 3 explicitly robs the entire duty of any legal usefulness whatsoever:

“(1) The only means of securing accountability in relation to the duty in section 1 is that established by the provision in section 2 for the laying of a statement before Parliament.

(2) Accordingly, the fact that the duty in section 1 has not been, or will or may not be, complied with does not affect the lawfulness of anything done, or omitted to be done, by any person.”

What a useless piece of legislation.

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The media and policy contexts of Tyrone Mings’ extraordinarily powerful tweet

13th July 2021

Yesterday the England international and Aston Villa footballer Tyrone Mings posted this tweet:

There is no equivocation: the express charge – that the home secretary is both stoking the fire of racism and a hypocrite – made by a senior and outstanding footballer is about as serious a thing that could be said by the one of the other.

That it is a quote tweet of the home secretary – and thereby both a direct response to and gloss of the minister’s tweet – makes it all the more striking.

Even without knowing anything more of the circumstances, it is a text of extraordinary power.

And at the time of posting this blog, the tweet had over 400,000 likes and 140,000 retweets/quote tweets – dwarfing the figures of the home secretary’s tweet.

It would appear our home secretary’s populism is not that popular.

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Understanding the various contexts for Tyrone Mings’ tweet adds to and does not diminish its force.

But such is the power of the tweet the contexts are also worth considering.

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One context is that this is the latest contribution from an individual with an open and long-standing interest in racial and social justice.

This is Tyrone Mings last year in Birmingham at the protests at the death of George Floyd:

Unlike politicians, for him this is no bandwagon.

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Another context is that social media allows there to be a countering and opposite reaction to the vile populism of politicians and their media supporters.

This is the media context of the tweet.

As this blog set out yesterday, the fragmentation of political parties and of the media enable knavish and foolish politicians an extensive reach for their culture war politics.

But it is not all one way.

The populists can be confronted and exposed.

The challenge for those who care for social justice and liberalism is to counter and oppose the illiberal populists on a sustainable basis.

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A further context is that Mings’ tweet undermines the attempts by the current government to evade responsibility for stoking the racism that manifested itself after England’s defeat – but is always present in our society.

This is the policy context of the tweet.

The government’s current ploy is to blame the social media companies with the threats, no doubt, of ‘tougher measures’ and perhaps even ‘crackdowns’.

But it is the ministers and their political and media supporters who derided as ‘gesture politics’ the direct moves by the footballers to show the watching supporters that racism was unacceptable.

Of course: social media companies need to take more responsibility – but they are conduits.

The footballers were instead confronting racism at its source – and government ministers mocked them for doing so.

Mings’ tweet exposed the emptiness and cynicism of the government’s political tactics.

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Any powerful political utterance will work on a number of levels.

But sometimes, that a statement has force in a number of contexts is an implication of someone having the courage and presence to say the right thing at the right time to the right person.

The implications and the contexts then take care of themselves.

The populism of illiberal politicians rarely have the substance and the effects of statements such as Mings.

It is almost as if the populism of the home secretary and others in the cabinet is the true ‘gesture politics’.

And they should remember that those who start culture wars can also lose them.

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When culture war combines with constitutional impotence: a warning from history

12th July 2021

The first time I heard about Otto von Bismarck was when I started my history A-level – until then I knew the name ‘Bismarck’ only as a name of a sunk battleship from world war two.

The first thing we learned about Bismarck the politician was that he launched a culture war – a Kulturkampf.

And the first things we learned about this Kulturkampf was that it created needless social divisions, that it was counter-productive and was quickly abandoned, and that Bismarck did not really have a sincere belief in any of it anyway.

Of course, what one gets to know from any A-level history course is often more simplistic than a more nuanced understanding that you can get from further reading and thought.

But this understanding of Bismarck and his Kulturkampf is more useful in understanding the policy of our current government than knowing the names of second world war battleships.

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At the time of my A-levels in the late 1980s, there was the political attack on the ‘loony left’ and then a decade or so later ‘political correctness’ was the target – ‘gone mad’ or otherwise – and now it is ‘deep woke’ or whatever.

And although from time to time this politics of nasty name-calling was translated into policy and law – for example, section 28 – it never seemed (at least to me, in my privileged state) the very essence of government policy until the current government.

Now there are a number of ministers who freely indulge in culture wars – playing like infants with matches.

A report published by the Fabian society today – of which I have only had a preliminary scan – offers a detailed analysis of the current culture wars and those who promote them:

These four summary bullet-points are especially plausible.

And the current configurations of media and politics seem to give each of these ‘peddlers’ more power than they may had before.

The decline in mainstream political parties as broad coalitions, moderating the extremes, means the grievance-mongers can rise quickly to political power – and that illiberal politicians can mobilise their illiberal bases directly and unashamedly.

(The political figures I remember from the late-1980s being the rent-a-quote members of parliament for ‘loony left’ hit-pieces – Beaumont-Dark, Dicks, Dickens – were all safely on the backbenches – now the quotes would come directly from the cabinet.)

The decline in traditional media as gatekeepers on who gets access to broadcasting and publication also mean that the perpetually outraged and the trolls have immediate and effectively limitless reach.

The grievance-mongers, the perpetually outraged and the trolls all existed (if with different labels) before the rise of the internet, but they did not perhaps have the easy access to media and political power.

A recent post on this blog averred that this political culture war has, in turn, constitutional – and constitutionalist – implications.

There is a reckless political belief that there are no constitutional rules or norms which are beyond being gamed for political advantage.

And when culture war combines with constitutional impotence then we have the politics of another German chancellor – you know, that one whose name you still do not need to have studied history to have heard of.

There is a worrying alignment of culture war and constitutional weakness, and unless one or both of these are addressed, it will not be difficult for knaves or fools to exploit their grim opportunity.

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So: will the policy nastiness soon stop?

11th July 2021

Politics is often cyclical.

One goes through a period of illiberalism – and the temptation is to project that into a dismal future of ever-increasing illiberalism.

And then: just as things seem to be inevitably getting worse, there is a swing back to liberalism.

There is a vice versa, of course: periods of self-congratulation and liberal complacency collapse into illiberalism.

Every 2012 London Olympics opening ceremony is not long followed by a Brexit vote.

The difficult – if not impossible – thing is to know the difference.

Are things getting better, or are they going to get worse?

The inclusive solidarity as signified by the current England football team, as complemented by the defeat of the governing party in recent by-elections, could mean that the illiberal tide has stopped advancing.

Hurrah!

Ot it could be a cause for false hopes.

Boo!

One day, historians will posit that whatever does happen next as having been inevitable all along – even though those of us here at the time can only see a range of possibilities.

But as the government keeps pushing forward with illiberal bills – policing, immigration, whatever – and infantile ministers play with the fires of culture war, there are still hopeful signs that the nastiness has not yet fully prevailed.

And, although politics may be cyclical, a great deal is still down to human agency.

The illiberals can be defeated again – and whether they are defeated or not may come down to political actions by liberals now.

There is a tendency sometimes for people to wrongly think things are all over, when there are still goals to be scored.

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Fundamental constitutional reform? We cannot even sort out the hereditary element of the House of Lords

10th July 2021

Sixty years ago, a Labour politician disclaimed a peerage – a viscountcy, no less – so as to sit in the house of commons.

That politician, of course, was Tony Benn who had become Viscount Stansgate on the death of his father.

He won the relevant by-election.

And now, in the early 2020s, we have this by-election:

The viscountcy survived and was claimed by Benn’s son, who is now a legislator in our parliament.

Thus is because there are still hereditary peers in the House of Lords – and, somewhat bizarrely, they are elected by other hereditary peers according to party quotas.

They are the only members of that chamber who are there by winning an election – or by not being opposed in one.

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There are many good reasons to have the house of lords as a check and a balance on the house of commons.

And the quality of the debates and of the amendments makes it difficult for anyone to make a practical (rather than principled) objection.

But that members of the house of lords – capable of initiating and amending legislation – can be there by the hereditary route is not capable of any sensible principled or practical defence.

It is preposterous.

It is 2021 – and even in 1911 it was intended that the hereditary presence in the upper chamber was to be temporary, as you can read in this preamble:

Immediate?

Like the presence of Anglican bishops also in that chamber – even though they are from the ‘established’ church of only one of the four home nations – the presence of hereditary peers is something which can and should be ended easily and, well, immediately.

That is, if anyone in front-line politics was genuinely interested in constitutional reform.

For in sixty years, with governments of all parties, all we have managed is to go from one Labour politician becoming a member of parliament by not being a viscount to another one, in effect, becoming a parliamentarian just because he is one.

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If all this were the second Act of a Brexit play, what will happen next?

9th July 2021

Every event is an end of something and the start of something else, and every event is also between the start and end of yet another story.

So assuming what is happening all around us is the middle part of a story, what will happen next?

We have the characters: the knavish and foolish ministers and their political and media supporters.

They have ‘got Brexit done’ in the first Act of our play.

But in our second Act, we have the challenge of, well, reality.

Things are not going to plan (if it can be called a plan).

Things are not as easy as the Brexiters averred.

Brexiters undertook certain legal obligations that they now do not want, and they made promises that they would rather forget – or renege on.

So in this second Act they are confronted with the consequences of their actions and inactions, and their lies.

Will the third Act give them their just resorts?

Or will they pull off an even bigger con?

And will then they get away with it?

Nobody watching Brexit can tell you for certain.