Southgate’s articulation of solidarity is everything that the facile populist nationalism of the current government and its supporters is not.
No wonder they have a phrase to deride it.
The practical approach of Southgate was set out in this detailed and insightful piece at The Athletic site (which is strongly recommended for its journalism-led content – and so subscribe to it rather than complaining about the paywall):
From cliques and club-v-country tensions of the bad old days to the togetherness of a squad who have learned to love playing for their country. How England borrowed from history, rugby union and Maori culture to create a new identity and team culture #ENGhttps://t.co/YTMcULcnIb
Reading Kay’s account of organisational change and inclusive solidarity, I was struck by its potential implications in respect of constitutionalism and political behaviour.
One of the problems in the current politics of the United Kingdom is the hyper-partisan disregard for constitutional principles and practices that mean politicians of different views can work together.
The prime minister Boris Johnson and his former assistant Dominic Cummings, and their supporters, have promoted the weaponisation of constitutional matters – from misleading the Queen to attacking the judiciary and ignoring the house of commons.
In these toxic Bannon-ite circumstances, the solution is not a written (that is, codified) constitution – for the knaves would just seek to game that too.
The problem is not formal – still less legalistic – but cultural.
There is not a sense of constitutionalism in the government – the understanding that there are political norms and practices higher than party advantage.
Instead, we have childish glee as a government-supporting politician finds a new confrontation to force or contrives a culture war to stoke.
It does not have to be this way.
And it is strange that it takes footballers to point this out – not only the mature inclusivity of Southgate but also, for example, the thoughtful kindness of figures such as Marcus Rashford and Jordan Henderson, among others.
Thanks very much David. Really appreciate that. And … yes, it feels like it's actually reaching the stage where the country could learn a lot from the England football team — although I suppose that's the last lesson some will want to take …
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Once upon a time my blog had a different name, and that name was Jack of Kent.
This was somewhat odd, as my name is not Jack and I am not from Kent (though I lived there at the time).
But in those days to give your blog a name was then a fashionable thing to do, like it once was to give yourself a calling name when CB radio was popular.
The Jack of Kent after whom the blog was named is a figure in the folklore of Wales and the west midlands counties.
In essence: he was was a figure who outwitted the devil by having careful regard to the actual wording of texts.
And so it seemed a good name for a legal blog.
Jack of Kent in turn was part of the folk tradition – and certainly not only in England and Wales – of stories about people caught in diabolical deals.
The unfortunate bargain is a staple of folklores and legends – with those entering into the bargains either suffering or, as in the case of Jack of Kent, irking the devil by holding the devil to its exact terms.
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Another staple, of course, is the trickster – a figure who is in many (if not most) of the traditions around the world – Loki, Puck, Anansi, and so on.
Their trickery is, of course, general – and it is not limited to reneging on obligations.
But what is uncommon – at least to my knowledge – is a story when it is the trickster who unwittingly has got himself or herself into a bad bargain.
Frankly: it is usually the trickster – in devil form – who is the one enticing a gullible or ambitious victim into a deal.
So there may be little guidance in folklore for what would happen when it is the trickster themselves seeking to get out of the deal.
But now we have a real-life example, to make good the possible paucity of folklore versions.
We have the unfolding story of the trickster Boris Johnson and the Brexit agreement.
Of course, Johnson did not realise what he was getting into.
Fo him, a deal – ‘oven-ready’, as he boasted – was the casual tool for other trickery.
Tricks he played on the Conservative MPs whose votes he needed and on the Democratic Unionists, whose voted he realised he did not.
And a trick he played to gain an overall majority in December 2019, with his solemn promise to get Brexit done.
Any problems about this deal were then safely in the future.
But those problems are here now – and they cannot be escaped with his usual bluster and evasions.
An international agreement was signed, and mere trickery will not get him out of it.
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What now?
A Loki may be able to change their nature – at least according to current retellings – but it is doubtful that a Boris Johnson can.
The best scenario is that the trickster fails and is seen to fail – and the story of Brexit can become in part an uplifting morality story about the futility of facile politics.
But there are other possibilities: that the trickster responds with ever-greater tricks – more diversions and misdirections, more lies – creating something that lends itself to a tragedy, or an epic – and not to a mere quaint folklore tale.
Brace, brace.
**
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The myth of the libertarianism of Boris Johnson, the prime minister of the United Kingdom, endures.
ANALYSIS: Libertarian Johnson follows instinct in a big bang unlock. He had promised a ‘cautious but irreversible’ route out of lockdown, but with Delta variant now spreading uncontrollably, he’s taking a big gamblehttps://t.co/vo37ZcvoAi
By ‘myth’ I mean that it is a thing that has narrative force, and which some people believe to be true, but it is a thing that is ultimately false.
Johnson is, of course, a political libertine, in that he believes rules – and indeed laws – are for other people.
His government attacks the independent judiciary, the impartial civil service and diplomatic corps and the public service broadcaster, as well as disregarding the speaker of the house of commons, the electoral commission, the ministerial adviser on the civil service code, the panel on appointments to the house of lords, and so on.
And so on.
If his government can get away with weakening or eliminating a check or balance, it shall do so.
It will not be told by anyone what to do.
The politics of Kevin the Teenager.
And this defiance is no doubt the basis of the decision of the government to relax the lockdown, despite various warnings.
Members of the government, and their political supporters, are fed up with being told what to do – especially as the impositions are for the benefit of others.
But.
Is this restless defiance ‘libertarianism’?
Is there a coherent vision of limiting the power of the state vis-a-vis the individual?
This is a government which is seeking to disenfranchise people:
Today the Government is presenting the Electoral Integrity Bill to the House. This Bill will contain provisions for Voter ID. Voter ID will potentially disenfranchise thousands of people. It is an illogical and illiberal solution to a non-existent problem
There is also, of course, the similar myth of the prime minister’s liberalism – that he, like Donald Trump, is really at heart just a metropolitan liberal.
Yet many in his cabinet – Priti Patel, Oliver Dowden, Robert Jenrick, Elizabeth Truss – merrily play with the fires of culture wars and the politics of social division and confrontation, rather than promoting the politics of inclusion and solidarity.
The prime minister does not mind or care.
By any serious definition of libertarianism and liberalism this government is neither libertarian nor liberal.
There is no general approach to limiting those with state power to the benefit of those who are affected by state power.
Instead we have a government with occasional twitches and jolts against state power while over time accumulating as much power as possible for the executive and dismantling or dismissing any entity capable of saying ‘no’.
The general approach of this government is authoritarian – though this authoritarianism can be set aside when the power of the state would be for the benefit of others.
There are many words for the general approach of the prime minister and his government, but ‘libertarian’ is not one of them.
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There will be many things about Brexit which will seem foolish or knavish.
Bad things that will make you sad or mad.
But usually you can work out the ‘why’ about the thing in question – even if you disagree with it, or even loathe it.
It may be that somebody was incompetent or dishonest.
But there will be an explanation of some kind.
There is, however, one thing – at least – which will always be incomprehensible.
Why did the Democratic Unionist Party and other unionists in Northern Ireland support Brexit – either so strongly or at all.
The shared membership of the European Union north and south of the border on the island of Ireland was the best guarantee of the continuation of the union.
There would never be any great urgent need for a border poll, and no great urgent need for any fundamental change, from any perspective.
But by supporting Brexit – and supporting the Conservative government policy of Brexit meaning departure from the single market and the customs union – this has made a border poll more likely and also a vote for a united Ireland more likely.
If a mischievous demon had been tasked with finding the most effective way of sabotaging the union, that demon would also have cheered on first Brexit and then the Theresa May/Boris Johnson approach of departing from the single market and the customs union.
It is a decision so incomprehensible that the two usual explanatory models of bad political decisions – foolishness and knavery – do not provide assistance.
For to posit either as an explanation is to imply that a thing is explicable, rather than inexplicable.
As a scientist would say: it was not even wrong.
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In today’s Sunday Telegraph there is a short, 750-word opinion piece by Vernon Bogdanor, the eminent professor of government.
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Previously I have criticised Bogdanor for not appreciating the constitutional significance of the Good Friday Agreement – see here and here – to which he responded here.
My view is that he has a vision of the constitution that holds that the position before the Good Friday Agreement is the norm from which politics and law have since deviated.
If you look at that exchange, you can form your own opinion on the merit or otherwise of my view.
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Bogdanor’s latest opinion piece is about the Northern Irish high court decision last week in respect of the challenge by unionists of the Northern Irish protocol – a case which this blog touched upon here.
The judgment is some 68-pages but is readable and is worth reading.
Bogdanor spends the first part of his article setting out a general account of the submissions made by the applicants and he then briefly summarises the court’s decision.
His summaries are not the ones that I would write – but they are unexceptional even if not balanced.
And then.
The article takes a turn.
We get to the final three paragraphs, and something happens.
Let’s take these paragraphs in order – and sentence-by-sentence.
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‘The uncodified British constitution allows Parliament to decide that Northern Ireland should be subject to different goods regulations and trading rules from the rest of the UK.’
The second part of that sentence is generally correct – though it is hardly the fault of our uncodified constitution.
Such a decision could easily have taken place under a codified constitution.
It was, of course, a decision for which the government had a mandate in the December 2019 general election as part of the ‘oven-ready deal’.
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‘But Unionists hold a different view of the constitution.
‘They hold that loyalty to Westminster is not unconditional, but dependent upon respect for the Union.’
This is a rather significant thing to say – and it contends that the legitimacy of the United Kingdom state is ultimately contractual – even transactional – as that loyalty is dependent on ‘respect’.
The implication of this would appear to be that if the United Kingdom state is in breach of this contract then the unionists no longer should abide by the law of parliament.
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‘That is why in 1974, a power workers strike by Unionists brought down the Sunningdale Agreement, which had provided for a cross-border Council for Ireland giving the Republic what Unionists believed was excessive influence over Northern Ireland.
Is Bogdanor suggesting there could, as a matter of fact, be similar civil disobedience now?
Or is Bogdanor even averring that such civil disobedience would be justified under our uncodified constitution?
It is not easy to tell.
*
‘The Unionists are Queen’s rebels.’
I am not sure what Bogdanor means by this.
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‘Where then stands the Protocol?
‘The EU Commission has agreed to the Government’s request to extend the grace period for chilled meat for three months.
‘But that merely kicks the can down the road.
‘In any case, the argument is not about sausages but about whether Northern Ireland is to be cut off from the rest of the UK.’
Here we perhaps go from the salami to the ridiculous.
The dispute is, of course, more than about sausages – but to escalate it to it being about the very union does not necessarily follow.
There are a range of resolutions to this dispute – either through the mechanisms of protocol or by amending it – all of which are consistent with the continued existence of the union.
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‘The court in Belfast is, however, right to this extent.
‘The question of whether the Protocol is constitutional is one not for the courts but for politicians.’
Here the contentions of the opinion piece appear to become confused.
A couple of sentences ago, Bogdaonor was saying that there could (and even perhaps should) be civil disobedience.
Civil disobedience means direct action outwith the processes of political institutions – that is out of the hands of politicians and the formal political process.
Unless, of course, what he means by ‘politicians’ are the leaders of the envisaged civil disobedience.
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‘The case for the Unionists is based on the Enlightenment principle of consent of the governed.’
Is this proposition correct?
The basis of unionism is the positive belief in membership of the United Kingdom, a belief that would still have force even if (or when) it becomes a minority view in Northern Ireland.
If (or when) that does come to pass, would a united Ireland (as endorsed in a border poll) be an imposition on the unionists?
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‘Sadly, the Unionists of Northern Ireland, together with Kurds and Israelis, are deemed not to be entitled to the benefits of this principle by progressive theologians.’
No, I am not sure what this means either.
*
‘But it is, nevertheless, a principle which should be enthusiastically championed by the Conservative and Unionist party of the United Kingdom.’
This is the last sentence of the article, and its import is unclear.
The Conservative Party is currently the governing party of the United Kingdom and it stood on an explicit manifesto commitment to get Brexit done by means of the withdrawal agreement – which contained the Northern Irish protocol.
For them to now switch would mean negating a manifesto commitment on which they won an emphatic victory in a general election dominated by the issue of Brexit – a general election that treated the whole of the United Kingdom as a single political unit.
This treatment of the United Kingdom as a single political unit was also, of course, adopted at the time of the 2016 referendum, where a majority the voters of Northern Ireland (like Scotland) voted to stay in the European Union.
Presumably the decision of the parliament of the United Kingdom to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland was also a breach of some enlightenment principle or other.
And when the Conservative Party do not ‘enthusiastically champion’ what Bogdanor wants them to champion, what then?
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Another constitutional principle – also in part from the Enlightenment, as it happens – is that of the rule of law.
The ‘rule of law’ is not mentioned in Bogdanor’s 750-word piece, which still found room for mention of both the ‘Queen’s rebels’ and ‘progressive theologians’, and is a shorter phrase than either.
The contention that unionist loyalty is ultimately conditional despite the law of parliament is reminiscent of “there are things stronger than parliamentary majorities” – a phrase with an unfortunate history in the context of Ireland.
4. Andrew Bonar Law, the pugnacious Conservative leader, told a demonstration: "there are things stronger than parliamentary majorities". He almost certainly helped supply weapons to the Ulster Volunteers: a paramilitary army dedicated to armed resistance aginst an Act of Parlt. pic.twitter.com/TfEwmvjGdz
A general strike – such as in 1974 – was not the only way that unionists in Northern Ireland have taken it upon themselves to prevent a perceived breach of the perceived contract between the government and the governed.
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To the extent that Bogdanor is warning in a positive way that peace and stability in Northern Ireland requires sincere and proper regard to the unionists then no sensible person can gainsay him.
But to the extent (if any) that Bogdanor is contending that the uncodified constitution and the principle of the consent of the governed justify a resort to resistance and rebellion (queenly or otherwise, and unarmed or otherwise) and discard for the rule of law then I fear he has fallen into error.
Bogdanor is right to say that political questions should be dealt with politically and not by the courts, but such questions also should be dealt with in accordance with the law.
**
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Over on Twitter, the educationalist and head teacher Katharine Birbalsingh set out in a thread her thinking about school rules.
So as to reduce the scope for any misrepresentation, here is the thread in full:
Why are school rules good?
Because as society has laws, schools need order.
Otherwise bullying/harassment. Lord of the Rings.
Parents want lovely schools but you won’t get them without rules or intense selection.
And yes, your kid needs to follow the rules too 1/6 THREAD👇🏼
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
But we don’t enforce silence or sitting up straight in society, so why in schools?
Our prisons are packed. We remove permanently those who won’t obey laws.
Schools can’t/won’t do that for most part.
They need a way to ensure a culture of order or the weakest get trampled 3/6
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
While more funding is always nice and some teachers aren’t up to the job, the main thing that makes a school good or bad is its CULTURE.
And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.
Unless you have a selective intake. 5/6
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
It is like teaching a toddler to say thank you or please.
‘You don’t get the chocolate until you say thank you.’
That’s a rule most parents teach and insist on over years until the habit is embedded.
It is the same for sitting up straight or not hollering in corridors. 6/6
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
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My immediate response to this earnest exposition was to tweet that it was priceless that a thread about academic standards started off by confusing Lord of the Flies with Lord of the Rings.
This was what would have been called in the days of the school standards urged, a ‘howler’.
And this howler prompted treasured memories of Alan Partridge’s Hot Topic:
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Caller: ‘Well I enjoyed the Hobbit more than “Riverdance”. And I think that lots of boys on an island killing a fat boy is not so enjoyable as Gandalf, with a long white beard.’
Alan Partridge: ‘Okay, if you’ve just joined us, we’re talking about who is the best lord. “Lord of the Rings”, “of the Dance” or “of the Flies”. That’s tonight’s “hot topic”.’
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Katharine Birbalsingh was not amused:
Your rudeness and pettiness is also priceless although more disappointing. Mine was a slip. Yours was not.
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
And so, as a courtesy, and with my immediate point having been made, I deleted my tweet.
*
But as a further recompense for my irksome tweet, I thought I should set out some thoughts about ‘rules’ – in schools and elsewhere.
After all, this is a blog about law and policy – and laws are rules, and education policy is a policy.
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One important quality that rules should have is, as Katharine Birbalsingh avers, consistency.
But there are other important qualities.
Another important quality of rules is credibility.
If a rule seems daft – indeed absurd – then it will be difficult for the individuals affected to take the rule seriously.
And if a rule is not taken seriously, people will tend not to comply with the rule, and those charged with enforcing the rule will tend to avoid enforcing it.
So, for example:
‘But we don’t enforce silence or sitting up straight in society, so why in schools?’.
The reason why those rules would not be enforced in society is because they would be daft rules, and they would be derided.
There are enough problems in getting people to comply with the legal rules that do exist:
‘Our prisons are packed.’
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Another important quality of rules is that they are proportionate and just – both in their nature and in their enforcement.
But a problem with strict rules – especially those with onerous sanctions – is that there can be no restraint on those enforcing the rules.
The enforcers become the bullies.
Power tends to corrupt, as some old liberal once said, and absolute power corrupts absolutely.
And so we come to the crux of Katharine Birbalsingh’s argument:
‘…the main thing that makes a school good or bad is its CULTURE. And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.’
[Block capitals in the original.]
One way of thinking about this proposition is to replace the word ‘school’ with the word ‘society’:
‘…the main thing that makes a society good or bad is its CULTURE. And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.’
In this recasting, you have what is the essence of illiberal totalitarianism.
Your rights are restricted, but it is only for your own good, and to protect you from the Other.
Given that the thread jumps from points about schools to those about society, it is not (I hope) unfair to set out this transposition, and its implications.
Back in the context of a school (or indeed any particular institution within society), the imposition and enforcement of strict rules can be the means by which the few (those who impose and enforce rules) can indeed ‘ruin it for the many’ (those who have to comply with those rules – or else).
Strictness as an end in and of itself can be as much a means of bullying of the ‘many’ as what the strictness purports to address.
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Now we come to the hobgoblins on the beach.
The schoolchildren in Lord of the Flies.
These are the horrors – the marooned turnip-ghosts – from which we need to protect our children.
If adults do not step in, it will go all Lord of the Flies.
https://www.youtube.com/watch?v=3jFqhjaGh30
*
A good response to Katharine Birbalsingh’s point here is this tweet:
Slip aside, does it not strike you that your point is undermined by the fact that the children in Lord of the Flies had attended schools with strict discipline?
— (no offence to Imagine Dragons, who suck) (@country_jim) July 3, 2021
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Lord of the Flies is one of those books about which anyone who knows of it will have an opinion about it.
And often that opinion will have been formed (or imposed) at school when it was a set text.
There is, of course, not one ultimately correct view of any literary text.
(This is where literature perhaps differs from law, where the conceit is that each legal text has an ultimate correct meaning – ho ho.)
In her thread, Katharine Birbalsingh was positing (or was intending to posit) the island in Lord of the Flies as the world of lawlessness – the anarchy, the chaos that every small-c conservative fears:
‘Because as society has laws, schools need order. Otherwise bullying/harassment. Lord of the [Flies].’
Of course, one of the places in our society which are nearest to the anti-ideal of this lawlessness, where bullying and harassment are rife are, well, prisons:
‘Our prisons are packed. We remove permanently those who won’t obey laws.’
And, other than a few dozen full-life sentence prisoners, the intention is that all convicts – over 80,000 of them – are to return to society after this experience of bullying and harassment.
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The counter-argument to Katharine Birbalsingh’s thread is that the imposition and enforcement of strict rules as an end in themselves can become a means of the ‘bullying and harassment’ that she claims to want to avoid.
Or the rules may become discredited and thereby pointless.
The important qualities for any body of rules are consistency (on which she is right) but also credibility and proportionality.
Otherwise the rules become part of the problem, and not part of the solution.
Rules are crucial – and as a law and policy commentator, I would say that wouldn’t I, else I would have nothing to commentate on – but their strictness is not an important quality.
Credibility and fairness are far more important than strictness.
Rules are an essential means of moderating power relationships – and they prevent those with power from injuring or exploiting those without power.
The principle of the rule of law means that legal rules bind the mighty as well as the weak.
And so to function properly rules need to have legitimacy, and not just firmness.
For, when rules lose their legitimacy…
…it all goes a bit Lord of the Flies:
‘“We’ll have rules!” [Jack] cried excitedly. “Lots of rules! Then when anyone breaks ’em–”
[…]
‘Jack was the first to make himself heard. He had not got the conch and thus spoke against the rules; but nobody minded.
[…]
‘“The rules!” shouted Ralph.
‘“You’re breaking the rules!”
‘“Who cares?”’
Who indeed.
**
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This is not a party partisan blog and there are good and bad in all mainstream parties (though some parties have more good than others).
But it is a liberal constitutionalist blog, and so the two recent defeats for the governing party are a good thing: the politics of inclusion and solidarity seem (just about) to have defeated the politics of exclusion and division.
The fragile coalition that bought the current government to power in December 2019 – in effect, to ‘get Brexit done’ and to ensure that the then leader of the opposition did not become prime minister – may turn out to be unsustainable.
So what?
This is of interest to those with strong feelings about party politics – but are there any implications for law and policy, from a non-partisan perspective?
Perhaps.
One of the features of the illiberalism of the current government seems to be a belief that constitutional and cultural conflict ‘play well’.
So you have the sight of infantile government ministers picking fights and attempting to provoke ‘culture wars’.
And you have the loud trumpeting of attempts to further dislocate constitutional arrangements – with the executive seeking to undermine the checks and balances provided by the courts, the legislature, the impartial civil service and diplomatic corps, and so.
Each attack intended to impress and mobilise the minority electoral base that is believed to be sufficient to keep this illiberal government in power.
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But it seems not to be working any more.
The lever may have come loose.
If this is the case – if – then there are two possible things that may happen: bad and good.
The bad thing would be that government ministers and their supporters want more illiberalism!
More division and exclusion!
More constitutional conflict and culture war!
Or, a good thing: government ministers and their supporters may come to their senses as they realise the diminishing political returns for their illiberal (and vile) confrontational politics.
Any sensible person would hope for the latter.
But nobody who has followed politics since 2016 could be confident that such a welcome development will occur.
So it all could get worse.
Brace, brace.
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This is from a submitted comment under one of my posts on the Daniel Morgan independent panel report (of all things):
‘Now, why would DavidAllenGreen want to assist the corrupt Establishment in hiding the Truth from the British public. Does Green hold the public in contempt too?’
The rest of the comment, and the commenter’s earlier submitted comments, will not be published, because I cannot vouch for the substance of the serious allegations.
But the lack of this publication does not mean, I hope, that I wish to assist the corrupt Establishment in hiding (either capital-T or lower-case-t) Truth/truth from the British public or indeed from anybody else.
Indeed, this blog has done as much as it can to set out commentary in respect of the serious and substantiated findings of ‘institutional corruption’ against the metropolitan police.
I have even done a video film for the Financial Times on ‘institutional corruption’ in the metropolitan police, which is hardly an example of the establishment protecting the establishment.
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But to gain traction with any serious charges of corruption, one needs a methodical, evidence-based approach.
An approach where the ‘c’ word – corruption – is the natural description of what is otherwise set out in detail and is sourced.
There is no doubt that there is widespread corruption, for that is the nature of those with power – and there is no doubt that more could be done by the media to expose the corruption.
But nothing useful is gained by putting the cart before the horse – or the dinghy before the national flagship.
There are different ways of going about it – and because this blog prefers an evidence-based approach in its commentary that does not mean that it is an establishment stooge.
(Perhaps this blog would say that, wouldn’t it?)
The difficulty with making out charges of corruption or of other serious failures is not in making the accusation – which is easy – but in making the charge difficult to evade or dismiss.
Of course, in this post-truth age of hyper-partisanship it may well be that sources and details are not enough – and here on thinks of the accumulation of adverse information about Donald Trump or Boris Johnson – but if anything is to ever have impact, it will need to have some substance to it.
The ‘corrupt Establishment’ is deftly skilled in brushing off even the most serious of complaints and is especially good at deflection when there is more heat than light.
In making it as difficult as possible for things to be deflected is not to hold anybody in contempt.
It is instead to takes things seriously.
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There has been another ‘constitutional case’ arising out of Brexit – this time from Northern Ireland.
The full judgment is here – and in summary the court holds that the Northern Irish protocol is lawful.
In doing so the court has, among other things, held that even if the protocol was in conflict with the Act of Union, the protocol would prevail.
This required the court to compare and contrast two ‘constitutional’ statutes – the Act of Union and the Brexit withdrawal legislation.
Other ‘constitutional’ cases, such as the two Miller cases, have required the courts to balance examples of the prime ministers discretion (Article 50 notification and prorogation) with the doctrine of parliamentary supremacy.
And indeed every ‘constitutional’ case in the United Kingdom requires the courts to balance different elements of the constitution.
But what no ‘constitutional’ case in the United Kingdom does is to compare and contrast a thing against a codified constitution.
In this way it could be contended that the United Kingdom does not have true constitutional litigation – at least in the way others in the world would understand the term,
A case may have constitutional themes, and engage the elements of the state, but for the court it is just an exercise in constructing powers and rights, and in interpreting legal texts, just as with any other case.
A case may thereby be constitutionally important without being what lawyers in other jurisdictions would regard a ‘constitutional’ case.
And that is why constitutionalism in the United Kingdom is – or should be – about taking checks and balances seriously.
Because ultimately that is the essence of our constitutional arrangements.
Checks and balances are all we have got.
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Every so often someone posts or tweets a succinct summary of the direness of a predicament.
And yesterday the Guardian live blog managed to put all the following into a single blog update:
None of these are a check or balance in the classic constitutional sense, such as the judiciary or parliament as a whole (though, of course, the speaker is one of the five).
And if only one of these example were sidelines, one could dismiss it as part of the rough tumbles of practical politics.
But taking all five together, there is a trend that should concern anyone – apart from the hyper-partisan supporters of the government.
Each example tells of the lack of constitutional self-restraint that that is the stuff of constitutionalism.
(Constitutionalism being the view that there are political rules and norms that have priority over partisan advantage.)
And these five examples are in addition to the disregard the prime minister has to the checks and balances in the classic constitutional sense: the judiciary, parliament, the independent civil service and diplomatic corps.
This is not – yet – a constitutional crisis, for as the two Miller cases and the Benn Act show, it is still possible for other elements of the constitution to ultimately assert themselves.
But is certainly all part of an ongoing assault on constitutionalism.
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