Author: David Allen Green

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.

“Deep Woke”, football, inclusive solidarity – and constitutionalism

8 July 2021

In the last week we have been introduced to the phrase ‘deep woke’.

It was used by my Financial Times colleague Gideon Rachman as an expression to describe the governing party’s disdain to this welcome and inclusive article by Gareth Southgate.

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A deep wookie.

(Source.)

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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):

Reading Kay’s account of organisational change and inclusive solidarity, I was struck by its potential implications in respect of constitutionalism and political behaviour.

https://twitter.com/davidallengreen/status/1412486141568245768

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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.

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Boris Johnson as a figure in the folklore traditions of tricksters and unfortunate bargains

7th July 2021

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.

You can read about the chap here.

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 tradition that had provided stories as diverse as Faust, Dorian Gray and Robert Johnson.

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 that the prime minister and this government is ‘libertarian’

6th July 2021

The myth of the libertarianism of Boris Johnson, the prime minister of the United Kingdom, endures.

But it is a myth.

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:

(And here it is nice to have a return of classic David Davis, as opposed to the Brexit variant.)

The government is seeking to ban people:

And this is from just two political Davids alone.

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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The one incomprehensible and inexplicable thing about Brexit: why did the Democratic Unionist Party support it?

5th July 2021

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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