Author: David Allen Green

What is Article 16 of the Northern Irish Protocol – and what on Earth was the European Commission thinking? (Includes a copy of the now deleted proposed regulation.)

30th January 20211

After four years or so of chronicling the various self-inflicted unforced errors of the United Kingdom, and the better decisions at each stage of Brexit by the European Union, it is kind of refreshing to see the European Commission commit a pratfall.

Of course, this is a grave situation, and we should be terribly earnest, but still: it is salutary to be reminded that no entity is perfect.

That said, some partisans – this time for the European Union – will maintain that there was no error and that the European Commission was entitled yesterday to invoke article 16 of the Irish protocol.

Unfortunately for such partisans, the European Commission did a quick reverse-ermine last night to un-invoke article 16.

This was quite the spectacle for onlookers at the end of what was, on any view, not a good week for the European Commission.

But what is article 16?

And what on Earth was the European Commission thinking?

And how can the European Commission explain (away) recital 17 of the (now deleted) proposed regulation in question?

*

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 plebeian ‘clause’.

And indeed articles tend to more self-contained as legal provisions – sometimes like micro legal instruments within macro legal instruments.

Article 16 is within the Irish protocol, which in turn is a protocol to the withdrawal agreement.

Instruments within instruments within instruments.

The article provides in its entirety:

The article is entitled ‘Safeguards’ – but straight away you will see that the provision is itself subject to its own safeguards.

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

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

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

And – in paragraph 2, any imbalances caused by the uses of the safeguards can be addressed.

And – in paragraph 3, there is a further process to be followed, as set out in an annex.

Annex 7 then in turn supplements the substantive limits to the use of Article 16 safeguards with procedural protections:

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.

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

It is not a red button that can be pressed by accident.

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

And the European Commission will know this – for two reasons.

First, article 16 is a provision which the European Union recently agreed.

And second, the European Union is a creature of law itself and is thereby bound by the letter of the law in what it can and cannot do.

The essence of the European Union is process, or it is nothing.

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Given the careful substantive and procedural protections of article 16 it came as a bit of a surprise when reports emerged yesterday that the European Commission was invoking the provision – and was doing so in a highly charged political situation.

As the Guardian reported:

Even the archbishop of Canterbury.

Imagine that.

*

Although the invocation of article 16 was widely reported by major news sites – and was not denied by the commission – there appears to have been no formal announcement by the commission.

Indeed, there appears to be no ‘on the record’ confirmation that it was invoked.

But.

What happened is that a proposed European Union regulation appears to have been published.

The regulation (in draft form) appears to be at the internet archive.

And, while I was writing this post, a reliable source has provided me with this ‘final’ copy that was deftly downloaded before the European Commission deleted the regulation.

tradoc_159398 (1)

*

Recital 16 – a formal recital! – of this regulation has the European Commission asserting that the quantitive restriction on exports was ‘justified’ under article 16, and that the justification was because it was ‘in order to avert serious societal difficulties due to a lack of supply threatening to disturb the orderly implementation of the vaccination campaigns in the Member States’.

This is significant, as the recital indicates that the justification exercise has already been conducted – that the recital describes a thing that has already taken place.

But asserting the safeguard is justified is not the same as showing that the substantive requirements of article 16 have been met: was it ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular situation, and was ‘priority’ given to what measures that cause the least disturbance?

Was the measure even within the scope of the Irish protocol in the first place?

And was the annex 7 procedure followed – or even considered?

What we do know, however, is that formal recitals to legal instruments do not come about by accident – even when those regulations are in draft form, let alone ‘final’ form.

Somebody somewhere in the European Commission had to have made a decision for that recital to be part of the regulation.

And that can be most plausibly explained by someone at the European Commission having decided to invoke article 16.

*

The invocation did not last long.

The European Commission issued a late-night press release stating that it was not triggering article 16:

The key sentence is unqualified (and is curiously in the present tense): ‘The Commission is not triggering the safeguard clause.’

*

The known facts point to article 16 having been triggered – that is the most plausible explantation for recital 16 to the proposed regulation – but also point to the commission not having followed annex 7.

In the immediate political context of concerns about ‘vaccine nationalism’ and in the broader context of the border in Ireland after Brexit, it was an unwise move by the European commission.

(Though, as averred at the head of this post, it was also good to see that the European Union can blunder as horribly as the United Kingdom.)

Perhaps the European Commission now hopes that this mistake will fade and disappear.

Perhaps both sides will now take more care before even considering article 16 safeguards.

Or perhaps all this is, in effect, a dress rehearsal for the political crisis when either side does go through with invoking article 16.

Brace, brace.

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There is no good reason why any public contracts are not in the public domain – the AstraZeneca vaccine contract or otherwise

29th January 2021

Yesterday this blog set out in detail what could be worked out form public domain sources about the politically controversial AstraZeneca contract for the provision of vaccines to the European Union.

That post was an exercise in detective work, aided greatly by the publication of a redacted version of a contract with another supplier, the terms of which fitted neatly with the details disclosed by the European commissioner and the CEO of AstraZeneca in their public bickering.

In the comments below that post, some commenters were able to glean even more from public sources, including from further examination of the published redacted contract (and many of the commenters at this blog are awesome and experts in their fields).

It was an interesting and indeed fascinating exercise.

But.

It was something which should not have been needed.

For the actual contract should have been in the public domain to begin with.

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There is no good reason why public contracts are not in the public domain.

(By ‘public contracts’ I mean contracts for the supply of goods, services and works –  including for major projects – to public authorities.)

There are (supposed) reasons – the cant phrase ‘commercially sensitive’ is often the excuse – but no good reasons.

But there are two good reasons why public contracts should be in the public domain.

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First, the goods, services and works supplied under public contracts are paid for with public money.

And public authorities tend to be reliable payers.

Fortunes can and often are made from lucrative public contracts.

It is not unusual for a valuable public contract to be the security for all sorts of further commercial transactions, so dependable is a public contract as a high-value revenue stream.

A good part of the wealth of the City of London, and of those currently enjoying lockdown life in expensive suburbs, is based not on the hard cut-and-thrust of private sector life but on the soft cushions of public sector contracts.

(And this dependency culture contrasts with the complaints of backbench government supporters about the supposed dependency-culture of free school meals.)

The price of this access to public money should be the burden of transparency.

A private sector company should not have the benefit of these lucrative and low-risk public contracts, and also have the contract shielded from public scrutiny.

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Second, turning from revenue to performance, there is a public interest in publication of how any public contract addresses issues of risk allocation and sanctions for breach.

This is not about prices – as the European commission showed in publication of the redacted vaccine supply contract, it is perfectly possible to publish the substance of how a contract manages risk without publishing (real or imagined) ‘commercially sensitive’ material.

How does the contract deal with foreseeable risks?

How does the contract allocate the burden of risks between the parties?

What happens if a provider is unable to provide the agreed goods, services or works?

This is the meat of any substantial contract – not just the list of what is bought and for what price.

If that is all a contract is then there would be no need for any contract to be more than a page long.

The bulk of a contract, other than for the most simple of transactions, deals with what happens when things do not turn out as agreed – and what can happen next.

And in any public contract what happens next in the event of any non-performance is as much a matter in which the public interest is engaged as in the performance.

But when a contract is – in its entirety – hidden from public view, the public have no knowledge of how that contract allocates risk – or indeed whether the contract allocates risk at all.

This in turn means there will be contracts where the risk of non-performance is loaded entirely on the public authority.

And with such contracts the supplier will not only have the benefit of a lucrative revenue stream but also the benefit of it being legally risk-free.

A public supply contract for cakes, and for the service of eating them.

*

Publication of such contracts would not, at a stroke, mean that problems of non-performance or overcharging will go away.

Public procurement has many problems, and non-transparency is only one.

But the ‘commercially sensitive’ cloak of invisibility serves no one other than the public officials and suppliers who are shielded from any meaningful scrutiny.

A public official can sign a bad deal (and then sign amendment after amendment to that deal), and no one will find out because it is all ‘commercially sensitive’.

A supplier can get away with either bad contracts or terms not being enforced against them, again because it would be commercially sensitive’ for the terms of the contract to be published.

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Some of those in public procurement will view the above as harsh – and will protest: how could you be so offensive and so doubtful.

But such displays of (non-commercial) sensitivity are not a good reason for non-disclosure of public contracts.

If all is well, then nothing will be lost with publication of public contracts – and publication will provided public confidence that good contracts are being entered into at fair prices and with effective and enforceable allocations of risk.

And if all is not well, then…well.

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What can be worked out about the ‘best efforts’ clause in the AstraZeneca vaccine supply agreement?

28th January 2021

Over at the Financial Times I have done a brief summary post on the ‘best efforts’ clause that features in the current public row between the European Commission and AstraZeneca – please click and read here.

This post sets out the ‘workings out’ for that summary, based on the information available to me this morning.

*

First, what is the public row?

The inkling of the row was on (Friday) 22nd January 2021: EU hit by delay to Oxford/AstraZeneca vaccine delivery.

The European Commissioner responsible in respect of the vaccine tweeted:

Here, note two things.

First, the information comes from AstraZeneca – in effect, the European Commission is being formally notified of a delay.

Second, the delays are against a ‘forecast’.

As we will see below, both of those things may be significant.

*

We now move to (Monday) 25th January 2021, and to the published remarks of the commissioner.

In particular, this passage:

‘Last Friday, the company AstraZeneca surprisingly informed the Commission and the European Union Member States that it intends to supply considerably fewer doses in the coming weeks than agreed and announced.

‘This new schedule is not acceptable to the European Union.’

Here note the following.

First, the ‘forecast’ is now a thing which was ‘agreed and announced’.

Second, the information coming from AstraZeneca is described as ‘surprising’.

Third, the reference to a ‘new schedule’.

We will come back to these details.

*

Now the interview with the CEO of AstroZeneca at la Repubblica dated (Tuesday) 26th January 2021 (and I rely on that site’s English translation).

The CEO is quoted as saying in part of his response to a question as to whether there is a feasible basis for a potential legal action against AstraZeneca:

“I can only tell you what’s in their contract. And the contract is very clear. Our commitment is, I am quoting, “our best effort”.’

*

Now back to the European commissioner, on (Wednesday) 27th January 2021 and further published remarks:

‘The view that the company is not obliged to deliver because we signed a ‘best effort’ agreement is neither correct nor is it acceptable.

‘We signed an Advance Purchase Agreement for a product which at the time did not exist, and which still today is not yet authorised. And we signed it precisely to ensure that the company builds the manufacturing capacity to produce the vaccine early, so that they can deliver a certain volume of doses the day that it is authorised.’

Note here the ambiguous sentence about what was signed.

Did the commission not sign an agreement with a ‘best effort clause’?

(Which was my first impression.)

Or did the commission sign a ‘best effort’ agreement but this does not remove the obligation of AstraZeneca to deliver the vaccine?

(Which is also a possible meaning of the statement, but not a meaning that would be immediately obvious to most people.) 

Also note the express reference to this being an ‘Advance Purchase Agreement’.

*

The advance purchase agreements are part of the European Commission’s vaccine policy announced last June.

In a detailed paper, both the nature and structure of these agreements are set out:

‘These agreements will be negotiated with individual companies according to their specific needs and with the aim of supporting and securing an adequate supply of vaccines. They will de-risk the necessary investments related to both vaccine development and clinical trials, and the preparation of the at-scale production capacity along the entire vaccine production chain which is required for a rapid deployment of sufficient doses of an eventual vaccine in the EU and globally. The conditions of the contract will reflect the balance between the prospect of the producer providing a safe and effective vaccine quickly and the investment needed to deploy the vaccine on the European market.’

The agreements were therefore (and were intended to be) balanced allocations of risk between the commission and the supplier.

These agreement would thereby not be bog-standard standard-form supply contracts, but agreements alert to and mindful of the particular risks in respect of the manufacture and the supply of the vaccine.

*

The agreement between the commission and Astra Zeneca is not in the public domain.

But what is in the public domain – helpfully – is a redacted version of an advance purchase agreement between the commission and another supplier.

The link to this agreement was (I am told by the commission press office) published on 19th January 2021 and so was published before this row.

This means that the redactions would not be informed by the subsequent row.

The agreement is here.

Of course, this is not the agreement between the commission and AstraZeneca, and it would only be sight of that contract that would mean you could say what was agreed with absolute confidence.

But, that said, a careful reading of this published contract is revealing.

*

Before we look at the contract, an assumption: the advance purchase agreement with AstraZeneca will be substantially similar to the published contract.

The contracts will not be absolutely identical, because there will be negotiated commercial and other terms (which are probably the redacted parts of the published contact).

And I think it is safe to assume that the agreement will not be on AstraZeneca’s own terms, given the importance the commission placed on the advance purchase agreements being a careful balance for all concerned.

Therefore I am assuming that the the advance purchase agreement with AstraZeneca and the published contract will have many identical and similar terms, even if not absolutely the same.

*

If we look at the published contract, and search, you will quickly find that ‘reasonable best efforts’ is a defined term.

(Some commentators, who have also seen the agreement, start and then sadly finish with just this definition – but as you will see, a defined term is only one step in understanding what is going on.)

The definition of the term is detailed, and indeed rather elaborate:

The size and scope of the definition tells us two things.

First, the parties did not want to leave it to the court (which in this case is the Belgian court) to construe what is a ‘reasonable best effort’ – the parties have defined it for themselves.

And second, such a detailed and elaborate definition in respect of a key component of the contract is likely to have been used in all the advance purchase agreements, not just the published one.

The fact it is not redacted in the published contract also indicates it is not a bespoke definition for just that particular contract.

*

But.

Any defined term is only as important as the operative provision in which it is used.

(This is where some other commentators have not taken the further step.)

A defined term does not exist in a vacuum.

‘Reasonable best efforts’ is not a free-floating term, to be produced like a joker in a card game.

It will be used, and its effect limited, in particular provisions.

And a search of the published contract shows that this detailed and elaborate definition is used only once (at least in the not-redacted text).

This is article 1.3 of the published agreement:

Here we will see that ‘reasonable best efforts’ is used for two things:

‘(i) to obtain EU marketing authorisation for the Product and (ii) to establish sufficient manufacturing capacities to enable the manufacturing and supply of the contractually agreed volumes of the Product to the participating Member States in accordance with the estimated delivery schedule set out below in Article I.11 once at least a conditional EU marketing authorisation has been granted.’

This means that ‘reasonable best efforts’ is only relevant for two specific purposes.

If the published contract is similar to the AstraZeneca contract, then it would be the second limb of this provision which would be relevant.

AstraZeneca would have an obligation to use ‘reasonable best efforts’ to ‘establish sufficient manufacturing capacities’ for the manufacture and supply of the vaccines ‘in accordance with the estimated delivery schedule‘.

Note the mention of the schedule, which ties in with the commissioner’s published remarks.

And note also the mention of ‘to establish sufficient manufacturing capacities’ – which would not mean, say, a diversion of what is manufactured once there are capacities.

*

And there is more.

If we now look at what happens with delays to the ‘estimated delivery schedule’ we go down to article 1.12 of the published agreement:

Here – significantly – both parties explicitly agree in article 1.12.1 that there is a risk of delays in production.

And in the event of such a delay there is an obligation under article 1.12.2 on the supplier to notify the commission and to provide a revised schedule.

Going back to what has happened in the last week, and assuming the contract with AstraZeneca is on similar terms to the published contract, we can see this is exactly what happened.

AstraZeneca informed the commission that it could not keep to the estimated delivery schedule on Friday 22nd January 2021 – and this accords with the mentions of ‘forecast’ and ‘schedule’ by the commissioner.

There was then push-back (to say the least) from the commission, and AstraZeneca – as described by the CEO – sought to rely on the estimated delivery schedule being subject to the ‘best efforts’ provision.

And the commission responded by denying that that ‘best efforts’ provision covers the delay – presumably because AstraZeneca has the capacity but is diverting it from the EU.

*

Of course, without the actual contract entered into with AstraZeneca we cannot be certain.

But it is telling how neatly the details provided in the public row fit with the steps of the terms of the published contract.

Unless there is something significant about which we do not know, it is more likely than not that the details provided in the public row mean that the contract with AstraZeneca are materially the same as that in the public contract.

If the reasoning in this post is correct then the following two things can be contended.

First, the remark of the commissioner that ‘[t]he view that the company is not obliged to deliver because we signed a ‘best effort’ agreement is neither correct nor is it acceptable” is capable of giving a misleading impression – for the agreement did have a ‘best efforts’ provision.

And second, the existence of that ‘best efforts’ provision may not be that helpful to AstraZeneca, if the correct construction of the contract is that it does not cover diverted capacity as opposed to lack of capacity – and so citing the ‘best efforts’ provision will not be enough to meet the commission’s complaint.

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The moral of the story, of course, is that such public supply contracts should be published as a matter of course – and there is no good reason for such contracts not to be published.

The benefit of access to public money should be the burden of transparency.

But that is a far wider issue to which this blog may return.

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Legal words v everyday words – how can the killing of six prisoners between the presidential election and inauguration not be a ‘cruel and unusual’ punishment?

27th January 2021

Over at Prospect my column this month is on the grim topic of capital punishment and how former President Trump revived federal executions in the last seven months of his presidency – for my article click and look here.

In this post today I want to expand on the issue I touch on in the introductory paragraphs of that article: what is a ‘cruel and unusual punishment’?

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The reason this matters, of course, is the eighth amendment to the constitution of the United States, the relevant text of which provides: 

‘nor cruel and unusual punishments inflicted.’  

So if a punishment is cruel and unusual (and note it is ‘and’ and not ‘or’) then it is not only prohibited but also unconstitutional.

Some would contend (in my view rightly) that any use of the death sentence is, at least in modern times, a ‘cruel and unusual punishment’.

But here another part of the constitution is engaged.

The fifth amendment provides, among other things:

‘nor shall any person…be deprived of life, liberty, or property, without due process of law’.

This means that the constitution envisages that a person can be deprived of their life by process of law.

And as United States prosecutors, and supporters of the death penalty often point out, the fifth and the eighth amendments were adopted at the same time (as part of the bill of rights) and thereby should be read together.

Of course, there is a certain irony – cruel perhaps – that the fifth amendment was intended to have a generally liberal effect now has, in respect of capital punishment, an illiberal effect.

So the constitutional position is that capital punishment is permitted (fifth amendment) as long as it is not ‘cruel and unusual’ (eighth amendment).

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In my Prospect column I argue, by the modern everyday meaning of the words ‘cruel’ and ‘unusual’, that the six executions after Trump was defeated and before the new President Joseph Biden was inaugurated were indeed unusual and cruel.

This argument has three bases.

First, once Trump was defeated it was plain that there would be a new president within weeks who was pledged to end federal executions.

And so if the executions did not take place by 20th January 2021 then the prisoner would not be killed.

They would still be alive today.

Second, federal executions are not usual

Indeed, before Trump there had not been any federal executions for seventeen years and, before then, only three executions since 1966.

Click and have a look at this table.

Of course, executions take place in individual states – though twenty-two states have abolished the death penalty and in a further thirteen states there is either a formal or an informal moratorium.

But at a federal level executions were not, between 1966 and 2020, usual.

And by definition, what is not usual is unusual. 

Third, these final six executions were (especially) cruel.

The prisoner – and those charged with killing the prisoner – knew that there was now a race against time.

This deliberate putting to death of a human being had to be done within days, if it was to be done at all.

The circumstances of the six executions after the election but before inauguration indeed amounted to the application of mental torture as part of the punishment.

*

But.

Although words have everyday meanings when those words are in a formal legal instrument, those words also have special legal meanings.

And the words ‘cruel’ and ‘unusual’ have been considered by the United States courts again and again.

Caselaw accumulates like barnacles on a shipwreck, so that little or nothing can now be seen of the original vessel.

The general position now is that whether a punishment is ‘cruel’ goes to the technique used at the point of death (and not the period leading to the execution), and if the punishment is still in use then it cannot be ‘unusual’ (which is fairly circular argument).

(The latest significant case in this grisly caselaw is here.)

What it is plain is that the wording of the constitutional prohibition is not autonomous – that it cannot be used in any given situation, free from the weight of caselaw.

A thing is only ‘cruel’ and/or ‘unusual’ if it accords with what these words mean as a matter of 230 years of caselaw, and not what those words mean in everyday discourse.

And this is both a merit and a flaw of placing rights in formal written instruments, such a a bill of rights.

On one hand, a person can point to the right and say with certainty that they have these fundamental protections; but on the other hand, formality can quickly become rigidity.

There is no easy solution to this problem of how one protects rights with a living, evolving legal instrument.

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None of this is to aver that the executions between the election and the inauguration were unlawful and unconstitutional – the fact that the United States supreme court did not prevent those killings indicates that the punishments were lawful and constitutional.

Nor does this post contend that the constitutional law of the United States can easily be recast so as to render such executions as unlawful and unconstitutional.

The purpose of this post is to illustrate the gap between everyday language and precise legal terminology: that, in these instances, things that are plainly cruel and usual are not ‘cruel and unusual’.

This leads to the wider point about using the law to guarantee rights and freedoms: a general legal instrument quickly attracts caselaw, and that caselaw scopes and often limits the meaning of that instrument.

And so one can end up with the vile spectacle of six human beings being deliberately slaughtered before 20th January 2021 because they would be safe from slaughter if they managed to live beyond that date, and that this horrific episode was, as a matter of law, neither cruel nor unusual.

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Why the first paragraph of the lawsuit brought by Dominion Voting Systems against Rudolph Giuliani is a splendid piece of legal drafting

26th January 2021

You would need a heart of stone not to laugh like a drain at the lawsuit brought by Dominion Voting Systems against Rudolph Giuilani.

The pleading is worth reading for its own sake, and the first paragraph – which, as this post will show, rewards re-reading – is a cracker.

But once one eventually stops laughing, what should one make of it?

Of course, the defendant Rudolph Giuilani is now regarded by many as a figure of political fun, a villain in the Trump pantomime.

But principle is – or should be – blind to the person to whom it applies.

So here is a thought experiment.

Imagine – for the sake of argument and exposition – that there was a corporation that provided voting machines and, unlike the plaintiff in this case, there was a serious and consequential issue as to the efficacy of the equipment.

And imagine that the political or media figure bringing loud attention to this issue was not the defendant in this situation but instead a credible and likeable politician or journalist.

Would you still clap and cheer if that noble figure was faced with a 107-page legal claim for $651,735,000 or some other absurdly precise amount?

Or would you re-tweet furiously about threats by corporates to whistleblowing and freedom of expression?

*

So how can the court tell the good cases from the bad?

How can the court strike the right balance?

*

This thread from American lawyer Mike Dunford sets out the legal challenges for Dominion Voting Systems:

And as would be the position with a similar case in England and Wales, you will see that the legal issue quickly becomes one of showing malice – and there it is called ‘actual malice’:

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At this point the non-lawyer will ask, understandably: what is malice?

And a lawyer will respond, frustratingly: it all depends.

But here it is interesting to now go back to the first paragraph of the the legal pleading of Dominion Voting System (and this is why it is worth re-reading):

“During a court hearing contesting the results of the 2020 election in Pennsylvania, Rudy Giuliani admitted that the Trump Campaign “doesn’t plead fraud” and that “this is not a fraud case.” Although he was unwilling to make false election fraud claims about Dominion and its voting machines in a court of law because he knew those allegations are false, he and his allies manufactured and disseminated the “Big Lie,” which foreseeably went viral and deceived millions of people into believing that Dominion had stolen their votes and fixed the election. Giuliani reportedly demanded $20,000 per day for that Big Lie. But he also cashed in by hosting a podcast where he exploited election falsehoods to market gold coins, supplements, cigars, and protection from “cyberthieves.” Even after the United States Capitol had been stormed by rioters who had been deceived by Giuliani and his allies, Giuliani shirked responsibility for the consequences of his words and repeated the Big Lie again.”

This is not just racy narrative – if you look carefully you will see that it is a clever attempt to show malice.

Giuliani said a thing he knew he could not say in court; he knew it would go viral; he had a financial incentive; and he was irresponsible in respect of its consequences.

Every sentence – every clause – of that well-crafted first paragraph is serving a purpose in showing that there was ‘actual malice’.

It is a lovely piece of legal drafting – enough to make one want to clap and cheer, regardless of the identity of the defendant.

*

Corporations – especially those providing public services or supplying equipment for use in public services – should not have it easy when it comes to making legal threats.

Even when they are threatening pantomime villains.

Public figures, especially those in the worlds of politics and media, should have some protection when they are complaining of such corporations.

Even when those figures are pantomime villains.

The purpose of the law in these situations is to strike a balance – to provide for what both sides would need to show in court.

Here the corporation – rightly – cannot just sue because of damaging false statements, it may also need to show that there was malice.

And the lesson of the first paragraph of the pleading and of the rest of the complaint is that in certain circumstances this can be shown, at least arguably.

What comes of this case cannot be guessed at this time – and most civil claims tend to settle.

But Giuliani has a genuine legal fight on his hands here.

And you would need a heart of stone not to laugh like a drain.

*****

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Why it is possible to be neutral about Brexit in principle – and how this may even be a good thing

25th January 2021

Yesterday the question came up on Twitter as to whether it was actually possible to be neutral about Brexit.

The contention is: surely the obvious problems of the departure of the United Kingdom from the European Union are such that nobody with any knowledge of the subject could be neutral on the topic.

One could be objective (or purport to be objective) – this contention goes – but nobody could any longer be ‘neutral’.

There is some attractive force in this contention – and it is certainly true that nobody could be indifferent as to how this calamitous Brexit has come about and is proceeding.

But.

As someone who is (or purports to be) neutral on Brexit in principle it seems to fall to me to explain not only why one can be neutral on Brexit in principle but also why it may be a healthy intellectual position that should be shared more widely.

Note here the words ‘in principle’ for they are doing some heavy lifting.

What is the principle?

The principle is straightforward, and it was stated in the referendum question itself:

“Should the United Kingdom remain a member of the European Union or leave the European Union?”

The two answers to this question were:

“Remain a member of the European Union”

“Leave the European Union”

The principle is about whether the United Kingdom is a member state or not a member state of the European Union.

And so this is the ‘Brexit in principle’ that I am neutral about.

*

The ultimate question of Brexit is that of formal membership of the European Union.

That is what the referendum question was about.

But this question of formal membership tells you nothing directly about whether a country is part of the Single Market: some countries participate in the Single Market without being members of the European Union.

And the question of formal membership also tells you nothing directly about whether a country is part of a customs union with the European Union.

It is perfectly conceivable for the United Kingdom to be in an association agreement with the European Union, participating in the Single Market and the customs union, and with shared institutions and mechanisms, without being a formal member.

And depending what happens with the current trade and cooperation agreement over the next five or ten years and so on, that is perhaps what the United Kingdom will end up with.

It may well be that such an association agreement will prove to be more enduring and sustainable than the forty-seven years the United Kingdom lasted as a member of the European Economic Community and the European Union.

*

Against this view is a powerful argument based on convenience: if the United Kingdom wants to be part of the Single Market and a customs union then it may as well be part of the European Union, where it will also have the right to influence policies and decisions.

There is a lot to be said for this pragmatic argument.

But that is what it is: an argument from pragmatism, and not from principle.

Indeed, after forty-seven years as a member state, there is certainly a compelling argument that any Brexit was always going to be far more trouble than it was worth.

And that is partly why I have been so critical about Brexit: a deep and lingering question of, well, what is the point?

This botched Brexit in practice has been an expensive and time-consuming exercise in placing the United Kingdom in a worse trading position that it was to begin with.

And so yes, in practice, any Brexit born in the political conditions of 2016 was likely to not go well – and indeed the one we had turned out quite badly.

*

But.

Being able to show how something has gone badly in practice tells you nothing directly about the principle.

And here I admit I am indifferent to all political unions, and not just the European Union: they come and go, rise and fall.

The United Kingdom itself, in its current form of Great Britain and six counties in the north of Ireland, is not much older than the European Coal and Steel Community, the supranational forerunner of the European Union (and on this point, see this post here).

And Great Britain itself is an improvised political union born in the particular circumstances of the early 1700s on this wet and windy island in the north Atlantic, and which has no absolute and eternal purchase.

Political unions come and go.

*

Whether the United Kingdom should now seek to (re-)join the European Union it formally left in 2020 is now a question which, on any view, is of keen political controversy.

Some will say that in no circumstances the United Kingdom should (re-)join: it is and should always be a (supposedly) ‘sovereign’ nation.

And others will say that, as a matter of principle, the United Kingdom should be part of the European Union both because of what the European Union stands for and because of its substantial benefits.

But there will be others, especially as the hectic political years of 2016-21 recede from view, who will not approach the debate from either of these absolute positions.

They will instead want to work forwards from questions of what works and what are the benefits, rather than backwards from an absolute commitment to ‘sovereignty’ or to membership of the European Union.

And this is where neutrality – as well as objectivity – in commentary is a good thing: nothing on this blog, or my stuff elsewhere, has the preconceived notion of the United Kingdom necessarily staying outside or quickly (re-)joining the European Union.

Of course, partisans for and against the European Union can be detached and objective – both a remain and a leave commentator, if intellectually honest, will recognise the same predicaments.

Not all partisans are hyper-partisans.

But it is also possible – and I aver a good thing – for a commentator on Brexit to not be committed to having the United Kingdom forever either in the column of formal members of the European Union or on the list of countries with other relationships with the European Union.

(And indeed to also not be committed to the United Kingdom as a political union.)

The question is what works in practice and is sustainable.

There are many things not to be neutral about – the absolute importance of universal human rights and the sheer horror of populist authoritarian nationalism – and it may be that certain political configurations are better placed, in practice, in dealing with these things.

There are certainly strong pragmatic arguments for the United Kingdom to be a member of all sorts of international associations.

But on the question of whether the United Kingdom is (again) a member-state of the European Union or has some other (perhaps more sustainable) relationship is an ultimate question on which being indifferent is not necessarily a bad thing.

Indeed, given the uncertainties and challenges ahead for the United Kingdom after Brexit, neutrality on this ultimate question is perhaps better than the alternative of commentating from a preferred end-position.

And the debate about Brexit and its aftermath may even be healthier.  

*****

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The fateful Bloomberg speech of 2013 – contextualising *that* speech by David Cameron eight years later

24th January 2021

Eight years ago yesterday the then prime minister David Cameron gave a speech at Bloomberg.

The speech was to have significant consequences.

The speech can be read here and can be watched here:

And, for background, there is also this Wikipedia page.

*

What should make of Cameron’s Bloomberg speech eight years later?

The speech is undeniably important in the telling of the story of Brexit.

Indeed, when historians come to write of the causes of Brexit, this speech is likely to be be emphasised as a key short-term cause.

It was the first of a sequence of events that led to the Brexit we now have: the Conservative manifesto commitment for a referendum; the 2015 general election; the return of an overall Conservative majority; the referendum bill, the (supposed) ‘re-negotiation’; the calling of the referendum; the (lacklustre) government campaign for remain; the referendum result; and so on.

In terms of a linear sequence of events, the Bloomberg speech would seem to have more reason than many others to be the prime-mover – at least in the short-term.

The first of an apparent chain reaction of political explosions, some with bigger bangs than others, that lead to the biggest bang of all: the rushed departure of the United Kingdom from the European Union.

But.

*

As Voltaire once said somewhere, history is a box of tricks we play upon our ancestors.

And so what looks neat and linear in hindsight can often be misleading.

This is because although historical narratives are (necessarily) linear if not always neat, past events are complex and invariably messy.

Accordingly, to reckon the significance of a politician’s speech – or of any text or any other speech act – one needs to place that text in contexts.

Otherwise one can fall into the error of thinking, in this particular case, that had Cameron not made that speech in 2013 there would not have been the Brexit we now have, or indeed perhaps no Brexit at all.

*

One context for the speech is the political situation of the Conservative party in and around 2013.

The party was in a coalition government with the Liberal Democrats, and the party itself had not had a majority in the house of commons since the early years of the premiership of John Major some twenty years before.

And in 2011 to 2013, the Conservative party looked as if it was being out-flanked by the United Kingdom Independence Party (Ukip).

So until and unless the Conservative party addressed the reasons for Ukip support – either by facing Ukip down or by engaging with its politics – there was a real prospect that the Conservatives would go yet longer without a parliamentary majority.

The Conservative chose to share the politics of Ukip: to make the departure of the United Kingdom from the European Union a real possibility.

(And the general election results of 2015 and indeed 2019 indicate that this Conservative political strategy has worked.)

Of course, had Cameron not made the Bloomberg speech in 2013, the surge in Ukip support and its political threat to the Conservatives would not have gone away.

Even with that speech, and the Conservative manifesto commitment of a referendum, Ukip performed strongly (at least in terms of votes) in the 2013 local elections, the 2014 European Parliament elections and the 2015 general election.

As such the Cameron speech was not a cause but an effect, and had a Conservative leader not done something in response to the rise of Ukip support eight years ago yesterday, there would have been something else before not much longer instead.

Some would say that a Conservative leader could have taken on the Ukip threat – like, say, the then Labour leader Neil Kinnock did with Militant in the 1980s – but that was not realistic.

The Conservative party – like the Labour party – had not made a positive case for the European Union for decades: to the extent the European Union impinged on domestic politics, it was invariably in terms of what the United Kingdom had opposed or had opted out of.

So as long as the Conservatives sought to obtain a parliamentary majority and Ukip would challenge that, then the place and timing of the offer of any referendum was incidental.

And given that the issue of membership of the the European Union would dominate the general election of 2015, it is quite plausible to see a referendum with a Leave victory happening afterwards, even if no speech had been given at all, at Bloomberg in 2013 or elsewhere.

*

Another context for the 2013 Bloomberg speech and its referendum commitment was the casual approach of Cameron to constitutional matters generally and referendums in particular.

There had already been a United Kingdom-wide referendum on the electoral system in 2011 which Cameron and other opponents of that electoral reform had defeated comfortably.

Cameron and the Conservatives were also bullish about the impending Scottish referendum (that the United Kingdom government had then recently agreed would happen and which took place in 2014).

Referendums must have seemed a doddle.

And, in any case, that there would be a referendum on any future European Union treaty ‘giving powers to Brussels’ was part of the law.

This general lack of constitutional seriousness can be evidenced in other examples from around the same period: in 2014, the Conservatives put forward an especially flimsy proposal for repeal of the human rights act and in 2015, Cameron sought fundamental reform of the house of lords just because of a defeat on a tax credits proposal.

The historical caution of the Conservative party in respect of constitutional matters was non-existent by the time of the leadership of Cameron.

And so eight years ago yesterday for Cameron to make a commitment to a referendum of such potential constitutional import was not a big thing for him or most of his party.

He probably put no more serious thought into the actual implications of a referendum defeat than he would have put into an essay on the topic of referendums on a PPE degree course.

In hindsight one can now see the serious consequences of such a referendum – not least how it can create a ‘mandate’ that undermines not only effective parliamentary scrutiny but the very doctrine of parliamentary supremacy.

But in 2013 this was not given a second thought, nor indeed much of a first thought.

*

A third context for the speech eight years ago yesterday is not provided by a thing, but an absence of a thing.

In the late 1980s, the 1990s and the early 2000s there was such a thing as ‘Euro-scepticism’.

(I know this because I happen to have been a Maastricht-era Euro-sceptic.)

This approach had two broad features.

First, it insisted that it was primarily about being wary of the direction of the European Economic Community (and then European Union).

In this, the guiding text was another speech by a Conservative leader, at Bruges in 1988, where Margaret Thatcher said:

“We have not successfully rolled back the frontiers of the state in Britain, only to see them re-imposed at a European level with a European super-state exercising a new dominance from Brussels.”

(Euro-sceptics, however, tended to ignore a later part of the same speech where Thatcher also said “Britain does not dream of some cosy, isolated existence on the fringes of the European Community. Our destiny is in Europe, as part of the Community.”)

The second feature of Euro-scepticism was that it was often a reaction to some new treaty advancement: Maastricht, Amsterdam, the (proposed) constitutional treaty, Lisbon.

But when this juggernaut of new treaties came to a halt with the treaty of Lisbon of 2007-9 – there have not been any such significant treaties since – Euro-scepticism lost the yin to its yan.

The development of the European Union entered into a settled stage.

And Euro-scepticism, as it had existed, served no purpose – the question became not about how the latest (supposed) treaty push towards integration should be countered but about membership itself.

There was now just a binary choice.

Any referendum would not be (and could not be) about any new treaty – as envisaged by the 2011 referendum legislation – because there were no new treaties.

The only thing left for a referendum to attach itself to was the question of membership itself.

And so a further context for the 2013 speech and the 2016 referendum is that – paradoxically – the end of substantial formal moves towards European Union integration at Lisbon meant that there was more risk that membership of the European Union was in question.

Those opposed to the European Union had now the cake of no further integration, and the supper of potential withdrawal.

*

There are many other contexts – geopolitics, migration, the credit crunch and austerity, and so on.

This post is not and does not pretend to be exhaustive.

But as with another post at this blog, on counterfactuals, this post avers that Brexit was not about just one bad decision.

There are many ways things could have happened differently and the United Kingdom could still today be in a post-Brexit predicament.

(And alternatively, there are no doubt certain decisions which could have led to substantially different outcomes – such as the decision by former prime minister Theresa May to rule out membership of the single market and the decisions by opposition leaders in late-2019 to nod-along with a general election.)

But the way Brexit did happen, at least in the short-term, followed a fateful speech eight years ago yesterday – when Cameron opened a box of tricks to play upon his contemporaries.

*****

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What codification of Roe v Wade means and why President Biden is right to support it

23rd January 2021

Yesterday the twitter account of the new president of the United States tweeted about abortion rights:

Around the same time the following statement was published by the White House:

“Today marks the 48th anniversary of the U.S. Supreme Court’s landmark ruling in Roe v. Wade.  

“In the past four years, reproductive health, including the right to choose, has been under relentless and extreme attack.  We are deeply committed to making sure everyone has access to care – including reproductive health care – regardless of income, race, zip code, health insurance status, or immigration status. 

“The Biden-Harris Administration is committed to codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe.  We are also committed to ensuring that we work to eliminate maternal and infant health disparities, increase access to contraception, and support families economically so that all parents can raise their families with dignity.  This commitment extends to our critical work on health outcomes around the world. 

“As the Biden-Harris Administration begins in this critical moment, now is the time to rededicate ourselves to ensuring that all individuals have access to the health care they need.”

*

But what would this “codification” actually mean?

And why should it be welcomed?

The starting point is the 1973 decision of the United States supreme court in Roe v Wade.

That decision held, in effect, that access to an abortion is a fundamental right under the constitution of the United States.

And as a right within the constitution then it is not open to any individual state to prohibit access to an abortion absolutely.

The decision did not preclude regulation of such access by individual states but they could not formally – or practically – ban it altogether.

The ultimate right – subject to regulation – of access to an abortion was that of the woman, and this right could not be removed by any state legislature.

*

From a liberal perspective, it does not ultimately matter what the legal basis is for the fundamental right of access to an abortion.

The basis in the United States could be a supreme court judgment, or a provision in the constitution, or a federal law, or whatever.

The important thing is that there is a right and that it is effective and can be enforced.

That said, there is considerable merit in placing the right on a firmer basis than just a supreme court decision.

What a supreme court giveth, a supreme court can taketh away.

And although conservative judges in particular believe (supposedly) in the principle of stare decisis (that is, precedent) they often find ways to distinguish and set aside precedents when those precedents are liberal.

The conservative packing by former president Donald Trump of the supreme court and the federal judicial benches generally mean that it is increasingly likely that Roe v Wade could either substantially limited or even reversed.

And this is partly because the privacy right that the supreme court articulated in 1973 as the basis of the right of access to an abortion is not actually an express provision in the constitution.

It is a right which the 1973 supreme court found to be necessarily implicit in the constitution.

But the general problem with any right judicially implied into a legal instrument by one court is that it is conceivable that another court will not make the same inference.

And although the 1973 judgment was a welcome advancement, few would say that the reasoning of the justices has been generally accepted.

So the judgment of Roe v Wade stands there precariously, awaiting an assault by conservative lawyers and judges.

And if it falls, then the constitutional right of access to an abortion falls with it.

What a supreme court giveth, a supreme court can taketh away.

*

So what could be done?

Ideally, one would want a constitutional amendment.

If the right of access to an abortion was explicitly spelled-out in, say, an amendment to the constitution then the position would be placed beyond doubt.

And then no supreme court, however constituted and motivated, could do a thing about it (without breaching the constitution itself).

But this would be unlikely in practice, if not impossible.

There would not be sufficient support in congress and certainly not from a sufficient number of states for the constitution to be amended under Article 5 of the constitution.

The next best thing, however, is codification.

This means congress placing the right on a statutory basis at the federal level.

And this would be possible because, as with any express or implied right of the constitution, there is a basis for congress to legislate.

It is not a perfect solution.

It would still be possible for a supreme court to strike down such an act of congress as unconstitutional as it is possible for any other federal legislation.

But it would fortify the right: for instead of a conservative supreme court only needing to reverse the 1973 judgment it would also require striking down federal legislation that gave statutory effect to that right.

And although a right as fundamental as access to an abortion should never depend on mere majoritarianism – for even if abortion was prohibited by every state legislature there should still be a right of access of a woman to an abortion, as that is the nature of fundamental rights – it can be argued that endorsement by democratically elected politicians would also make it more difficult for judges to overturn the relevant legislation.

*

Of course, it is at this stage only a proposal – former president Barack Obama also put forward codification only to not go through with it.

But given the recent packing of the federal benches with conservative judges and what seems to be (and without any serious doubt is) a long-term co-ordinated judicial strategy by conservatives of reversing Roe v Wade, it is prudent for the right of access to an abortion to be codified.

Rousing liberal judgments are wonderful gladdening things – but they are shaky as the sole basis for any fundamental right.

No fundamental right should depend only on a majority of judges at a certain moment in time.

Roe v Wade is a great judgment – at least in its effect, if not its reasoning – but the right it articulates is becoming more vulnerable than it needs to be, and so that right should now be codified.

For what a supreme court giveth, a supreme court can taketh away.

*****

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The United States had its cathartic post-2016, post-Trump ceremonial moment – but the United Kingdom cannot have a similar post-2016, post-Brexit moment

22nd January 2021

Two days ago the inauguration of a new president in the United States gave ceremonial form to the constitutional substance that the presidential term of Donald Trump was over.

What had been done in 2016 had, to a significant extent, been undone.

Of course, there will be things that could not been undone, such as the scale of the avoidable loss of life by reason of a flawed coronavirus policy.

The extensive conservative appointments to the federal judicial benches will take a political generation to counterbalance, if they are counterbalanced at all.

And Trumpism – populist authoritarian nationalism feeding off post-truth hyper-partisanship – certainly has not gone away, even if Trump is no longer in the White House.

But taking account of these exceptions, there was still a moment of closure: that a particular presidency was both formally and substantially at an end.

*

In the United Kingdom there will not be such a moment where one can say the consequences of the 2016 referendum vote will come to a similarly cathartic end.

In 2016, American voters (via the electoral college) elected Trump for a term of four years, while those in the United Kingdom voted for Brexit with no similar fixed term.

One decision was set to be revisited in four years, the other was not.

*

Even the (various) departure dates have not provided any sense of release.

The United Kingdom was to leave on on 29th March 2019, then 12th April 2019 or 22nd May 2019, then 31st October 2019, and then 31st January 2020 (on which date the United Kingdom technically left the European Union), and then there was a transition period which would end on 31st December 2020 (on which date the transition period did end) or 31st December 2021.

A couple of this spate of departure dates did turn out to be legally significant, but none of them appear to have had any substantial effect on the politics of Brexit.

Those in favour of Brexit appear to still be trying to convince themselves and others of its merits, and those opposed to Brexit are still seeking to demonstrate its folly.

(This is despite the ‘mandate’ of the 2016 referendum having now been discharged,  in that the United Kingdom has now departed the European Union.)

None of the various departure dates marked when those in favour of or against Brexit could say the matter is decisively over, in the same way the Trump presidency came to its obvious end.

Partly, of course, this is because of the ongoing pandemic: every political thing is now muted.

But even taking the pandemic into account, the politics unleashed by the 2016 referendum have certainly not come to anything like an end.

*

But Brexit will never be over in other senses.

As I averred in this Financial Times video, the trade and cooperation agreement between the European Union is expressly structured as a ‘broad….framework’ that can be supplemented by further agreements on discrete issues and is subject to five-yearly reviews on more fundamental issues.

 

Brexit is now a negotiation without end.

Instead of ever-closer union we now have ever-closer (or less close) cooperation.

There has not been a once-and-for-all settlement of the matter of the relationship between the United Kingdom and the European Union.

We have simple swapped one dynamic relationship for another.

*

Some of those opposed to Brexit are now waiting for a grand realisation – where a substantial number of people may wake up to what has happened since 2016 and come to their senses.

The notion is that such ‘loss aversion’ will have considerable political force and push the United Kingdom back towards the European Union – perhaps even to swiftly rejoining as a member.

This may happen – the lesson of 2016 is that many unlikely things can actually happen in politics.

But it is unlikely – the government and its political and media supporters are adept at evasions and misdirections, and voters are capable of blaming many things before they will blame their own votes.

Yet taking this as a possibility, it would not be enough.

This is because there are two constituencies that those who seek for the United Kingdom to (re)join the European Union need to win over.

The first is the United Kingdom electorate which needs to be won over to settled and sustained support for full membership of the European Union (without the benefits of the United Kingdom’s previous opt-outs).

The second, and perhaps far harder, will be winning over the European Union.

A belief that once the United Kingdom sorts itself out, that (re)joining the European Union would be straightforward is just a variant form of British (or English) exceptionalism.

Even the grandest, most dramatic domestic realisation of the folly of Brexit will not mean the United Kingdom joins the European Union again, unless the European Union also sees it as in its interests for the United Kingdom to (re)join.

Remorse, however sincere and lasting, will not be enough.

There is no reason or evidence to believe that the European Union would consider membership of the European Union for at least a political generation.

(And the United Kingdom itself may not even exist in its current form by then.)

So as Brexit is a negotiation without end, it will also be two political exchanges (the domestic debate, and the two-way relationship between the United Kingdom and the European Union) without any early or obvious end.

*

There will be no cathartic Biden-like ceremony to bring Brexit to a close.

This is because of the nature of the 2016 referendum (which, unlike the election of Trump, was not a decision for a fixed period); and because of the dynamic structure of the new relationship as set out in the trade and cooperation agreement; and because of the unsettled politics both internally in the United Kingdom and of its relationship with the European Union.

And so, to a significant (though not a total) extent, the United States was able to bring what it decided in 2016 to a formal and substantial end, the United Kingdom cannot similarly do so.

For the United Kingdom, 2016 is here to stay.

*****

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

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Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome. 

 

The inauguration of a new president: mere ceremonial form and hard constitutional substance

21st January 2021

One of the few benefits of lockdown is that you are no longer expected to go to weddings and other ‘happy’ ceremonies.

Instead of days of tiresome travel and hours of boredom, one can watch the ceremony and speeches on a laptop for an hour or so and then go and do something more useful instead.

(For more on form vs substance regarding marriage ceremonies, see my 2011 New Statesman post.)

*

Much of this impatient disdain for mere ceremonial form can and should be applied to constitutional matters.

Certain symbolic events symbolise nothing other than symbolism is important only for the sake of symbolism.

Interesting perhaps for the fogeys and other enthusiasts, but often a bore for the rest of us.

And presidential inaugurations in the United States are usually fairly meaningless occasions, other than that they happen to be around the same time as when by automatic operation of law one presidential term ends and another one begins.

But the inauguration ceremony yesterday was different.

It was riveting.

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Just as lockdown has had a few benefits notwithstanding the immense misery, so has the presidency of Donald Trump.

And one of those few benefits is that far more people now realise how the constitutional law of the United States works (and does not work) in practice.

Certain things before Trump were taken for granted to the extent that anyone realised those things existed at all.

Take, for example, what happens between a November presidential election and the January inauguration of a new presidential term.

The rights to recounts and re-run ballots; the certification of votes by each individual state; the appointment of electors for the electoral college and their obligations; and the congressional counting of the vote and certification of the winner.

Previously each of these steps – even with the contested 2000 result and Bush v Gore – was a mere formality.

One could have an informed interest in American politics and not know much or indeed anything about these obscure procedural steps.

Now many people know exactly the process that exists between the national vote and the start of a new presidential term.

And widespread knowledge about constitutional arrangements is a good thing.

It may be a bad thing for constitutional law to be exciting –  politics should take place within an agreed framework rather than constantly being about undermining that framework – but understanding the rules of any game is important for those taking part and those watching.

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And we watched the ceremony yesterday with anxious scrutiny.

Few people in the future will realise just how nervous many of us were in the last hours and indeed minutes of the Trump presidency.

What would he do? 

What could happen?

Is it over yet?

(And indeed Trump issued another pardon with only minutes of his term to go.)

Even watching the chief justice swear in the new president was not enough: it still was not noon Eastern Standard Time.

The final one or two minutes seemed to last an eternity, even though the new president was well in to his acceptance speech.

And then: it was twelve noon EST.

Not since Charles Perrault’s Cinderella has there been a strike of twelve that produced such a wonderful general transformation.

It was over.

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The greatest (if flawed) writer about the constitution of the United Kingdom – at least from an English perspective – Walter Bagehot made a distinction between the efficient and the dignified elements of a constitution.

Some who only know of this famous distinction misrepresent it as meaning that the dignified elements are somehow useless elements.

But this is not what Bagehot meant – what he actually said was:

“There are indeed practical men [and women] who reject the dignified parts of Government. They say, we want only to attain results, to do business: a constitution is a collection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless.

“And other reasoners, who distrust this bare philosophy, have propounded subtle arguments to prove that these dignified parts of old Governments are cardinal components of the essential apparatus, great pivots of substantial utility; and so they manufactured fallacies which the plainer school have well exposed.

“But both schools are in error. The dignified parts of Government are those which bring it force—which attract its motive power. The efficient parts only employ that power.”

He continued:

“[The dignified elements] may not do anything definite that a simpler polity would not do better; but they are the preliminaries, the needful prerequisites of all work. They raise the army, though they do not win the battle.”

In other words, it is not just important that institutions work well but they are legitimate and seen to be legitimate.

And thereby the purpose of any constitutional ceremony is not just an exercise in form but part of what confers legitimacy on those who exercise the power of the state.

Of course, we could have got by without any ceremony yesterday and just watched the clock run down in silent dread.

And of course, the ceremony was not ‘efficient’ – even the chief justice got the law wrong in that Biden was not yet the new president, at least for thirteen minutes.

But as Bagehot averred, to say part of a constitution is dignified is not to say that it is useless, but that it serves another purpose.

To be sworn in at the seat of the legislature by the head of the judiciary is a powerful indication of constitutional legitimacy, especially as it was at the very place where an insurrection happened just days ago.

This will not be enough for some Trump supporters, but it could not have been done better in the circumstances.

In more than one sense, therefore, the inauguration ceremony of Joseph Biden sought to bring dignity back to the government of the Unites States – not only in his personal manner but also in Bagehot’s sense of demonstrating to all those watching that this new presidency is constitutionally legitimate.

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