Author: David Allen Green

The significance of the appointment of Lord Frost as a cabinet minister for Brexit

18th February 2021

Compare and contrast two government statements.

The first – which was released to the media though not (it seems) published on the government website – is from just before Christmas 2019.

The statement read:

“The Department for Exiting the European Union will be wound up once the UK leaves the EU on the 31 January.

“DExEU staff have been spoken to today. We are very grateful for all their work and we will help everyone to find new roles.”

The notion was that, now Brexit had been ‘delivered’ there was no need for a cabinet-level minister to be dedicated to Brexit.

But Brexit had not been delivered.

Brexit had hardly begun.

For as this blog as previously averred – and as I set out in this Financial Times video – Brexit will be a negotiation without end. 

This is because in part of the enormity of the issues that still need to be settled – but it also because of the deliberate structure of the withdrawal agreement and the trade and cooperation agreement.

Both of the Brexit agreements create institutions and frameworks for ongoing negotiations, and negotiations, and negotiations.

That the ‘delivery’ of Brexit will be an ongoing matter for substantial and intense engagement with the European Union is a feature of the withdrawal arrangements, not a bug.

The content and form of the exit agreements are not about once-and-for-all and one-bound-and-we-are-free.

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And so we come to the second government announcement, from yesterday.

Regardless of the personalities involved – Frost is, in effect, taking over from Michael Gove as the cabinet minister responsible for Brexit, and Gove is a politician many have very strong opinions about – this is a sensible and welcome appointment for four reasons.

First, it shows the government has realised that the task and tasks ahead for Brexit are such that it needs a dedicated minister at cabinet level (even if not, strictly speaking, a secretary of state).

Indeed, the United Kingdom’s relationship with the European Union is likely to be a far more visible and prominent feature of public policy after Brexit than before.

And the cabinet office – and thereby Gove – has many other responsibilities. 

Second, it indicates that the government has realised the folly of creating a special pop-up department for the purpose of dealing with Brexit and is instead working with the grain of the planks of Whitehall than against them.

The cabinet office has many faults, but it at least has the departmental weight, and the expertise and (now) institutional memory on Brexit, that an entirely new department would lack.

Third, as Frost was the United Kingdom’s negotiator of the trade and cooperation agreement, there is a benefit for him also being in place for the negotiations that are to take place within the framework of the agreement.

The many delicate compromises of the agreement, and the agreed processes established to address hundreds (if not thousands) of technical issues (as well as various big ones) will not be – or should not be – news to him.

And fourth, the appointment regularises the position of Frost in the government – making him a formal minister so as to end his limbo state as a politicised adviser and ‘sherpa’.

As such he will be responsible to parliament directly.

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Not all government decisions – even with Brexit – are calamitous.

Sometimes the government of the United Kingdom can surprise you and do something (eventually) that makes sense.

Of course: there should have been in place a dedicated cabinet minister for Brexit all along – and, if so, various problems over the last year may not have the effects that they did.

But the primary significance of the appointment is that it implies an official acknowledgement that the real work of Brexit is still to come.

If so, perhaps Brexit reality is finally seeping in.

*****

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Why is the Human Rights Act 1998 still so contested? And what can be done about it?

Ash Wednesday, 2021

The political hobgoblin is at it again.

As this blog has previously averred, this particular politician is a political hobgoblin, adept at at identifying political gaps and then exploiting those gaps so as to inflict misfortune and spread discontent and gain political support.

As such, this politician should be taken seriously – though not on his own terms.

All because an illiberal politician wants others to join some culture war that does not mean that liberals and progressives have to do so in kind.

But quietism is an error too: the old commands to not ‘feed the trolls’ or ‘give oxygen’ are not useful tactics or a sensible strategy to address relentless authoritarian nationalistic populism.

Instead, corrections should be made as publicly as possible, and illiberal ploys assessed for their significance to see what, if anything, can be done practically to combat any appeals of reaction and illiberalism.

Had liberals and progressives reacted differently to the rise of Ukip, for example, and made the positive and informed case for United Kingdom remaining part of the European Union, and for staying part of the single market and the customs union, then the shape of Brexit may well have been different, that is if Brexit would have happened at all.

*

So what should one make of this complaint about the ‘EU Human Rights Act’?

One reaction is to laugh and sneer at its legal illiteracy: for the ‘EU Human Rights Act’ is not a thing.

The politician(s) saying otherwise know this, but they do not care.

They are getting the ‘likes’ and RTs and claps and cheers anyway.

And liberal and progressive jeers are, for the illiberals, all part of their political fun: the sound of ‘libs’ being ‘owned’.

But if liberals and progressives simply ignore the hobgoblins then that may have the unhappy result of making certain unwelcome legal and policy consequences more likely.

And the Human Rights Act may end up thrown away like membership of the European Union, and liberals and progressives will stand and stare and wonder: how did this happen?

*

And here we come to the Human Rights Act 1998, which took legal effect twenty years ago, in 2000.

The statute is still there on the statute book – while politicians who have sought to repeal or dilute it, such as David Cameron, Theresa May and Chris Grayling, have come and gone.

This survival may make the act’s defenders and champions complacent.

But the main reason the act has survived – at least on my analysis – is that the Good Friday Agreement provides that the European Convention on Human Rights is directly enforceable in the courts of Northern Ireland.

And one of the things that the act does is to make the convention directly enforceable in domestic courts in a way that would not be legally possible but for the act.

If the Human Rights Act 1998 was repealed then something very similar to that act would need to be put in place straight away, at least in respect of Northern Ireland.

The current political controversy about the position of the north of Ireland after Brexit indicates, however, that nothing about the Good Friday Agreement should be taken for granted.

And liberals and progressives should not thereby rely on the Good Friday Agreement being the means by which the act will survive, instead of making the positive case for the legislation.

After all, the fact that membership of the European Union provided a practical solution to the question of the border in Ireland did not stop Brexit.

*

After twenty years of legal effect, the Human Rights Act 1998 is still contested.

It has not eventually become part of the political consensus, in the way that other previously contested legislation have done so.

Every general election the Conservative Party will bang on their populist drum about replacing the act with something else.

Part of this perhaps is because of the name of the legislation.

Had the statute instead been called the ‘Interpretation of Legislation and Powers of Public Authorities (Application of Articles of the European Convention on Human Rights) and Related Purposes Act 1998’ then maybe the act’s opponents would be less incensed.

And as the Police and Criminal Evidence Act 1984 – arguably the most important legislation ever passed for the practical protection of civil liberties – shows, the more boring the name for an act, the more it can get away with.

Here, ‘New Labour’ may be blamed, as for many other things.

For as with the Freedom of Information Act 2000, the government of Tony Blair put dramatically named legislation in place, and then did nothing to take the next step of embedding that legislation as part of the political mainstream.

Just passing the Human Rights Act and the Freedom of Information Act but then not promoting a sustainable human rights and freedom of information culture was a big job left undone.

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Another reason why the Human Rights Act is still contested is that the news media do not value the legislation.

Indeed, the way the act enabled the courts to ‘develop’ (that is, to invent) an entirely new tort of the misuse of private information was seen as a hostile move by much of the news media.

And had the courts put comparable efforts into ‘developing’ the right to freedom of expression under Article 10 then the news media may have come to see the act in the same way American journalists see the first amendment.

But in practice, Article 10 often seems to be the weakest of the rights provided for under the act – invoked as part of a perfunctory ‘balancing exercise’ before being rejected in favour of privacy rights.

As the eminent jurists Chas and Dave would put it, Article 10 is the sad neglected Mr Woogie of domestic human rights law, and Article 8 is the popular Mr Boogie.

Poor old Mr Woogie.

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And what the Human Rights Act gets right is also overlooked.

Take for example the new Hillsborough inquest.

That there was a further inquest able to to explore fully the circumstances of the tragedy was legally possible only because of the Human Rights Act.

The right to life under the act carried with it the duty to ensure that the circumstances of deaths brought about by the acts and omissions of public bodies (in this case the police) were properly considered.

And so even though the tragedy was before the act took effect, the new inquest had to take the wider Human Rights Act-compliant approach.

But you would not know this from news coverage – and indeed many people who follow public affairs would not know this at all.

There are many other examples, but none that have traction in the public domain.

And so we are left with the occasional outrages instead.

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Finally, there is the inconvenient truth that the Human Rights Act is not what some of its supporters say it is.

The act is not an especially powerful statute.

It provides a basis for a court to take a right under the convention seriously, but it does little more than that.

Almost all the rights are ‘qualified’ and so can be side-stepped in practice as long as a public authority can show that the interference with the right is proportionate and in the public interest – and these are not high hurdles.

And, unlike what was the case with European Union law, primary legislation cannot be set aside when convention rights are breached.

The Human Rights Act provides a balance between access to the convention rights in legal proceedings and the doctrine of parliamentary supremacy.

The act does not do a lot, but it does enough – and it is far better than nothing.

But a practical and pragmatic case for something that is ideoologically contested is difficult.

Brexit showed this.

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So how does one defeat the political hobgoblins?

By realising that there is a case to be made for a thing that is contested – and by making that case.

By patiently correcting errors of the hobgoblins and by being realistic about what one is defending.

This approach, of course, has no guarantee of success.

But ignoring the hobgoblins – or screaming at or along with them – is even less likely to be successful.

And sometimes contests can be won as well as lost.

The outcome of a contest may not be predetermined.

Ask Mr Woogie.

*****

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An introduction to Article 16 of the Northern Irish Protocol

16th February 2021

Article 16 of the Protocol on Ireland/Northern Ireland seems to be fated to become one of those legal provisions known by their number alone, like Article 50 or Section 28.

The provision has already been the feature of a political controversy, when the European Commission made the horrible mistake of invoking Article 16 in respect of proposed regulations about the coronavirus regulations – a proposal that was promptly, and correctly, withdrawn.

The prime minister of the United Kingdom Boris Johnson has also been reported as saying that he would be minded to trigger Article 16 in certain circumstances.

In these circumstances, a working knowledge of what Article 16 says, and does not say, may be useful for those who follow public affairs.

This post provides a basic introduction to the provision, and it complements a video that I recently narrated for the Financial Times.

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As a preliminary point, just as one does not simply walk into Mordor, one should never go straight to a clause or other provision within a wider legal instrument without an understanding of the purpose of that wider legal instrument.

By analogy: one can perhaps make sense of a line of computer code, but one also needs to understand how that line of code fits in the wider program to elicit its full meaning.

Similarly, an undue focus on the wording and contents of a single provision in any legal instrument can be misleading.

Every article, clause, section – or whatever word used for a discrete portion of legal text – has a context.

And so with Article 16 we have to understand something about the purpose of the Protocol on Ireland/Northern Ireland.

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The protocol, in turn, does not exist in isolation.

The protocol is attached to the Brexit withdrawal agreement – one of the two vast and complex international agreements between the European Union and the United Kingdom that provide the legal framework for Brexit.

The recitals to the withdrawal agreement – which (literally) recite the background and shared understandings of the parties to that agreement – describe the purpose of the the protocol:

Not just specific, but ‘very specific’.

You will also note the word ‘durable’ – and this indicates that it was the shared understanding of the European Union and the United Kingdom that the protocol would not be a temporary arrangements.

Article 125 of the withdrawal agreement then provides for how and when the protocol takes effect:

You will see Article 16 is not included in the provisions that had immediate effect on the departure of the United Kingdom from the European Union – and so Article 16 has only had legal force since 1 January 2021.

The other main mention of the protocol in the main withdrawal agreement is that there shall be a specialised committee dealing with the protocol as part of the ‘Joint Committee’ that oversees the agreement:

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Now we can turn to the protocol itself.

Confusingly – and welcome to European Union legal instruments! – the protocol itself has its own recitals and articles.

And the protocol has a lot of recitals – twenty-three recitals (as opposed to nineteen operative articles).

Each one of these recitals sets out expressly a shared understanding of the European Union and the United Kingdom.

In particular, the government of the United Kingdom has put its name to each one of the recitals as a statement of its own understanding.

The recitals are not agreements in themselves, and they are not legally enforceable by themselves, but they do set out the common understandings of the European Union and the United Kingdom that are relevant to the articles that follow.

And these recitals, in particular, are significant:

And:

Note the word ‘guarantee’.

And:

And:

A common response from those unhappy with the protocol is to insist something about what the Good Friday Agreement does and does not provide in respect of a ‘hard’ border.

These recitals, however, do explicitly set in firm and emphatic language the shared understandings of the European Union (including Ireland) and the United Kingdom in respect of there not being a hard border.

And this is in the very ‘oven-ready’ withdrawal agreement for which Johnson and the Conservative Party won a mandate at the December 2019 general election and that was then endorsed by the Westminster parliament.

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Now the articles – the substantive operative provisions that are entitled to have legal effect as between the parties.

You will see that the articles provide for substantive obligations in respect of the free movement of persons and goods (and Article 5 in turn incorporates an annex listing hundreds of European Union regulations and directives).

There are also provisions for State aid and VAT.

The protocol is, in effect, the legal mechanics for Northern Ireland remaining, in effect, part of the European Union single market and customs arrangements whilst still being part of the United Kingdom single market.

It is a complex and – regardless of one’s political views – remarkable piece of legal drafting, especially given the rush of the exit negotiations.

But as with any legal instrument – especially ones devised at speed and in respect of sensitive issues – there will be problems and disputes and unintended effects.

And this brings us to Article 16.

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Article 16 comprises just three paragraphs:

The article is entitled ‘Safeguards’ – and not, for example, ‘Sanctions’ or ‘Retaliatory measures’.

The first paragraph then provides the triggers for the safeguards.

There are two triggers.

First: ‘if the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist’.

Here note the requirements that the difficulties need to be ‘serious’ and ‘liable to persist’ – that it, not trivial or temporary.

Second: ‘if the application of this Protocol leads to…diversion of trade’.

Again, ‘diversion’ indicates something significant and lasting.

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If either of these triggers are met then either the European Union or the United Kingdom ‘may unilaterally take appropriate safeguard measures’.

Note the requirement that the measures be ‘appropriate’ – and also (deftly) the measures have to be ‘safeguard’ measures, and not any old measures.

Paragraph 1 of the article then also adds further requirements in respect of the scope and duration of the safeguard measures, and subjects the measures to a test of strict necessity.

And – and! – priority should be given to ‘such measures as will least disturb the functioning’ of the protocol.

Paragraph 2 of the article then provides for similar tests for any ‘balancing’ measures of the other party.

These are all onerous substantive tests – and each one must be met for a safeguard measure to be adopted.

And these are just the substantive tests – for Annex 7 to the protocol also provides for the procedure that also has to be followed.

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Annex 7 contains six ‘points’:

You will see point 1 provides a duty of notification at the stage the safeguard measure is being considered.

Point 2 then provides that the next stage is consultations.

Point 3 then imposes a general one month delay, unless the consultations have ended quickly or there are ‘exceptional circumstances’ and the measures are ‘strictly necessary’.

Point 5 then provides that, in addition to the requirement that the safeguard measures not endure longer than necessary, there is a three month review period.

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All of these substantive and procedural provisions are consistent with the measures being of the nature as described on the tin: ‘safeguard measures’.

The measures are to be protective – and what is to be protected is the operation of the protocol and the shared understandings on which the protocol rests.

This means any attempt to use the safeguard measures to, say, alter the operation of the protocol, or to disturb the shared understandings on which the protocol rests, is outside the purpose of the safeguard measures.

In simple terms: that is not what the safeguard measures are safeguarding.

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Of course, politicians being politicians, there will be a temptation to use the Article 16 safeguard measures for other purposes – as leverage in trade discussions, or as retaliatory weapons, or as an attempt to re-write or even discard the protocol.

But even if the intention is to misuse the safeguard measures, the measures are – at least in theory – subject always to the substantive requirements of Article 16 and the procedural requirements of Annex 7.

Of course: all legal instruments are only ever as powerful as the human will to enforce their terms.

For Quis custodiet ipsos custodes? – the eternal question of who watches the watchmen – applies here, as elsewhere.

What – or who – shall safeguard the safeguards?

*****

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Why political conservatives should embrace free historical inquiry – rather than imposing and promoting an official version of the history of the United Kingdom

15th February 2021

Another weekend, another Sunday newspaper splash from the government and its media supporters hoping to have a culture war to which their opponents will come.

From yesterday’s Sunday Telegraph:

Now, having digested (or otherwise) this ‘torpedo’, let us go back thirty-or-so years to a time when political conservatism in the United Kingdom was in a far more intellectually confident state.

The late 1970s and 1980s was when a range of conservative (big ‘C’ as well as little ‘c’) academics and public intellectuals were challenging (perceived) orthodoxies in many intellectual disciplines: economics, sociology, and so on.

In the historiography of the United Kingdom, in particular, many received versions were being questioned.

Jonathan Clark and others were subverting the ‘whig’ or ‘Enlightenment’ view of the ‘long eighteenth century’ of 1660-1832 and were urging instead that religion generally and Anglicanism in particular be taken seriously as an explanatory means of understanding political and social change – and lack of change.

For the nineteenth century, John Vincent and Maurice Cowling were disputing that the widening of the franchise in the 1860s was to do with any sense of democratic progress, and were contending instead that it was far more about the cynical political opportunism of the politicians involved.

In respect of the twentieth century, Correlli Barnett was confronting the comforting origins of the post-war welfare state consensus with an equally discomforting counter-narrative in his Pride and Fall sequence.

A brilliant young historian named Andrew Roberts took on head-first the most cherished of recent British myths in a book entitled Eminent Churchillians – the poundering revisionism of which would make even the most devoted admirer of Netflix’s The Crown blush.

(Eminent Churchillians remains Roberts’ best book by a country mile – and its demolition of Arthur Bryant’s patriotic history a delight.)

There were many others.

It was a fascinating – exciting – moment to be a student of history (as I was).

And all this at a time when communism (in its post-war form) was about to come to an abrupt end, notwithstanding the claims from a few (if not the many) that such a system was historically inevitable.

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Thirty years later, no doubt little of this intellectual energy has perhaps left a lasting historiographical mark.

The weaknesses and faults of these historians and their histories have, in turn, been exposed.

Historiography has moved on.

But at the time it signalled an unafraid seriousness to take on and replace versions of history on which liberal and progressive pieties often rested complacently.

And it was not an accident that these academic challenges were concurrent with the politics of Thatcherism that also sought to take on the certainties of left wing and centrist positions.

So it seems telling that the conservatives of today do not share the intellectual confidence of their counterparts of thirty-or-so years ago.

Instead of taking on histories that show the precariousness of the ‘Union’ of the United Kingdom, or how much British economic development depended on the ownership of slaves and the system of slavery, or how the British empire was as just as exploitative and brutal as any other empire – these discomforting challenges to the conservative worldview are to be ‘torpedoed’ by bureaucratic directions instead. 

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Many ideologies have, as a component, a theory of history.

Certainly many ideologues do.

And this is true for internationalists as well as nationalists, liberals and progressives as well as conservatives, Remainers as much as Brexiters, and so on.

One test of the soundness – indeed robustness – of that ideology is how it copes with fundamental challenge.

Are the ancient tools of ‘heresy’ and ‘blasphemy’ re-fashioned with modern guises so as to do the work of closing down unwelcome subversions?

Or are the foundations of the ideology more robust than that?

(And there is always the question of whether a thing is an ‘ideology’ just because you say it is.)

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A great deal of modern political conservatism – now hardening into the worship of plaster and plastic heroes – was based on the questioning of received historical conventional wisdoms in the 1970s and 1980s.

And now conservatives want to pull their intellectual shutters down, pull up the historical drawbridge, and fill the moat with torpedoes.

Those who support the current government of the United Kingdom – and the view of the British past that it promotes – should relish taking on the historiographical challenges presented by a more-rounded understanding of the history of these islands and of their economic and imperial history.

For if that ‘Brexit’ understanding of British history was valid then current Brexit positions will be validated.

And if those understandings are invalid, then it will show that the Brexit endeavour may itself be misguided.

*****

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The acquittal of Donald Trump – a silver lining

St Valentine’s Day, 2021

Of course: former President Donald Trump should have been convicted yesterday.

The reasons for this are neatly summarised in this statement by one of the republican senators who voted to convict on impeachment:

If anything justified a conviction on impeachment, and thereby a disqualification from holding office again, then it was what happened on 6 January 2021.

Yet Trump was acquitted.

Whatever the reasons for his acquittal – and it is difficult to see anything other than hyper-partisanship as the motivation for those voting against conviction – the brute fact remains.

This impeachment failed to result in a conviction.

And so Donald Trump goes from being the only president of the United States to have been impeached twice to now also being the only president to have been acquitted twice.

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Failure sucks, defeat sucks.

It was absolutely the right thing to do for the house of representatives to impeach Trump.

And nothing in this post should be taken to mean that it is somehow a good thing in and of itself that the trial on impeachment failed to obtain a conviction.

But.

There is a silver lining.

*

An impeachment is and should be an exceptional thing – it means that an official (or former official) faces a sanction other than in the normal course of the operation of the constitution.

So, for an elected office holder, it means a sanction other than removal by means of the election cycle (or term limits).

And for a former elected office holder, disqualification means that he or she cannot be elected again, regardless of their popularity.

Impeachment and disqualification mean a thing so bad has happened that it should not just be left to the voters at the next election.

One problem, however, of Trumpism – that authoritarian nationalist populism for which some fairly would use the ‘F’ word –  is that it would not have automatically have disappeared if there had been a conviction.

Trump and Trumpism are not going away.

Trumpism – and Trump himself – would have weaponised the conviction as a mere technicality – a Washington device to prevent Trump from standing again in four years’ time.

It would have been presented as – and no doubt widely seen as – an attempt to defeat Trump and Trumpism by non-electoral means.

A stab in the back.

*

Trump and Trumpism are not going to be defeated just by constitutional procedures.

Instead: Trump and Trumpism have to be defeated electorally, and be seen to be defeated electorally – and, if need be, this has to be done again, and again, and again.

Trump and Trumpism have to fail politically – and to keep on being seen to fail politically.

For it is in the nature of Trumpism that any other setback will be exploited as evidence that the ‘elite’ are somehow frustrating the supposed will of the people.

Of course, this is not easy – and Trumpists are are already ‘poisoning the wells’ by seeking to discredit the electoral system itself.

But they would not even have to resort to this if they could point to Trump’s exclusion from standing again by anything other than his own electoral unpopularity.

The failure to convict Trump – and thereby the failure to disqualify him from office – is a huge setback for liberal democracy.

But it is also an opportunity to electorally defeat him, and the horror for which he stands, all over again.

(And to aver this is a silver lining is certainly not to deny there is a dark cloud, for a dark cloud is always what any silver lining presupposes).

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During the first part of the Trump presidency there was the tendency for some liberals and progressives to look at the Mueller investigation as a form of cavalry of knights who would ride in and save us from our distress.

While more hard-headed and worldly campaigners knew that the next election had to be won precinct by precinct, in the environs of Atlanta and elsewhere.

The reason for this lazy tendency was the political trick of mind that prefers the easy quick-wins of legal and legalistic processes, instead of the work of winning elections (and referendums) and defeating illiberals.

(A similar frame of mind in the United Kingdom led to some looking to the Electoral Commission and police investigations of Leave campaigns to save us from the result of the 2016 referendum.)

And although the complaint is often made of legal commentary on public affairs that it overlooks and underestimates the political element, often the reverse is true.

Laws and legal process are tools for certain tasks – but they are not a substitute for what should be left to politics and elections.

So: yes, the second impeachment of Trump should have ended with conviction – we all know this.

That is what impeachment is for.

Trump should have been held directly accountable for what he did and did not do on 6th January 2021.

He should have been held accountable.

But impeachment is not the only form of accountability.

There may be better and more effective ways to hold him and what he stands for accountable too.

And any defeat will then be all the more emphatic.

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Why not every discussion about the Crown should be just another debate about its abolition – and what Netflix’s ‘The Crown’ gets right

 13th February 2021

This week the Guardian has run a sequence of pieces about the right of the Queen and the Prince of Wales in respect of proposed legislation that affects their private interests.

See here, here, and here.

Such a right is, as this blog averred, unacceptable and should be abolished (and indeed could be easily abolished without even an act of parliament).

But even mentioning this particular wrong triggered the usual broader reaction: ‘Let’s abolish the monarchy while we are at it’.

And so a particular point becomes the most general of demands, and in the end – as always – nothing will be done about either of them.

This is, in live action, the constitutional utopianism recently described by this blog (here and here).

It is similar to what happens with any attempt to highlight or expose a constitutional wrong by the government.

There such an exposure or highlight triggers the general demand for a written (that is, codified) constitution. 

And again, nothing ends up being done to address, still less remedy, the specific problem.

(I have set out in this provocatively titled Prospect column, why we should stop talking about about a written constitution.)

These general reactions are not so much ways of thinking about constitutional issues but a way of not thinking about them.

You hear or read of a problem, type out your demand in a tweet or other comment, bit ‘enter’ and gain a ‘like’ or even a retweet, and: job done!

But the job is not done.

In fact, nothing gets done.

And the constitutional abuses carry on as before.

*

Of course, there is a strong if not compelling case – in principle – for republicanism in any mature polity.

Strange women lying in ponds distributing swords is no basis for a system of government.

Supreme executive power should derive from a mandate from the masses, and not from some farcical aquatic ceremony.

(Ahem.)

Against the strong if not compelling case for republicanism as a matter of principle, however, there is a plausible case as a matter of practice for the monarchy in the instance of the United Kingdom.

This practical argument is not so much about what powers the Crown has – but what powers it prevents others from having.

In particular, the office of prime minister has few direct and express powers (and indeed there are relatively few mentions of ‘prime minister’ in statute or case law), meaning that almost all exercises of prime ministerial power are negotiated and are thereby contestable.

Even the convention that Crown will do whatever the prime minister ‘advises’ was shown to be open to challenge by the supreme court of the United Kingdom in the second Miller case.

These checks and balances on ultimate executive power are weak – but the challenge for any republican is that they should show how any replacement to the monarchy would also have checks and balances.

For a solution to the problem of the monarchy that would mean even more unchecked and imbalanced executive powers would not be an improvement – at least not from any liberal perspective.

*

In constitutional theory the Crown is the ultimate basis of not only executive power but legislative power (the ‘Queen-in-Parliament’) and even the judiciary (the Queen-in-her-courts).

This can lead to pleasing if not amusing events such as an application for judicial review brought in the name of the Crown (‘Regina‘) in respect of the exercise of the royal prerogative to prorogue parliament so that there can be a new Queen’s speech.

(That was the constitutional essence of the second Miller case.)

An understanding of the Crown therefore is essential to understanding at least the theory of the current constitutional arrangements of the United Kingdom.

And as the ‘United Kingdom’ label on the tin suggests, the Crown is the single most significant unifying factor in the current political union of England, Scotland, Wales and Northern Ireland.

If and when there is a republic then what replaces the Crown will also have to function as this all-purpose constitutional glue.

This is not to say abolition of the monarchy should not be done – but, like Brexit, there will be an awful lot of work to do just to duplicate current arrangements under a new label.

And, again like Brexit, the question has to be whether it would be really worth all the time and effort, regardless of your position as a matter of principle.

*

In the meantime, the powers of the Crown – both in respect of the public powers of the royal prerogative and the private powers such as the Queen’s Consent – still need anxious scrutiny.

That there is a broader question of whether there should be a republic should not mean any narrower questions should be disregarded.

The one thing that the Netflix series The Crown gets right – even if it gets a lot wrong in respect of historical detail – is that it conveys that the monarchy is an ongoing work-in-progress.

The Crown adapts, and it seeks to avert or survive crises with a combination of stubbornness and reinventions: an institution highly alert to its own precariousness.

And those who want to limit the misuses of the power of the Crown (and what is done in its name by the prime minister and others) should adopt a similar but opposite approach.

For keeping the powers of the monarchy properly in check is also an ongoing work-in-progress.

And in the happy event that we do one day become a republic, then keeping the powers of any presidency would also be an an ongoing work-in-progress.

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The ‘Jeremy Corbyn test’ or the ‘Hillary Clinton test’ – how to uphold constitutionalism in an age of hyper-partisanship

12th February 2021

Yesterday this blog averred that the twin perils of constitutionalism – at least from an English law perspective – were fogeyism and utopianism.

Fogeyism is the view that previous constitutional arrangements (either real or imagined) are inherently meritorious and are prescriptive and binding – and that any departure from these previous arrangements is unsound and should be resisted.

Constitutionalism in a tweed jacket.

Utopianism is the view that the only constitutional reforms worth contemplating are to achieve certain ideals: A written constitution! Abolition of the monarchy! Abolition of the House of Lords!

Constitutionalism waving a placard.

Both fogeyism and utopianism are normative approaches to constitutionalism – preoccupied with what they aver the constitution should be, rather than what it actually is.

But there is a far greater enemy for constitutionalism than either fogeysm or utopianism – both of which are at least often based on a sincere interest in constitutional affairs.

This greater enemy is hyper-partisanship.

For hyper-partisanship is the dark matter of constitutionalism.

It is anti-constitutionalism.

*

Constitutionalism is the view that politics and government should normally take place within an agreed framework of principles and practices that regulate what happens when there are political tensions.

Of course, there will be – and should be – tensions within any polity – for that is the very stuff of politics.

Without tensions you do not even have politics.

The constitution of the polity then provides how these tensions are reconciled before they harden into contradictions: who gets their way, and on what basis.

*

Hyper-partisanship, in turn, is the view that the constitution is – and should be understood to be – an entirely partisan device.

This goes beyond the normal partisanship of the party battle and the clash of politicians.

Hyper-partisanship weaponises the very constitution as part of those conflicts.

In particular, there will be no protection in the constitution – no check or balance – that cannot be dismissed as being politically motivated.

*

The senate trial of the second impeachment of Donald Trump is an illustration of such hyper-partisanship.

There are republican senators who will vote to acquit Trump regardless of the merits of the case.

Similarly, no doubt, there will be democrat senators who will vote to convict Trump regardless of the merits of the case.

And this is notwithstanding that the constitutional purpose of impeachment is to address the issue of how to deal with certain behaviours outside of any election cycle.

If an otherwise impeachable offence could just be dealt with by the choices of electors then there would be no point having the power of impeachment.

Impeachments should not be partisan matters.

*

Here it is perhaps useful to employ what can be called the ‘Jeremy Corbyn test’ – or, for the United States, the ‘Hillary Clinton test’.

That is to imagine in any constitutional controversy the politician(s) at stake being the opponents of the politician(s) at stake.

So, instead of Trump it would be Clinton.

And instead of Boris Johnson it would be Corbyn.

Would the current republican senators who are solemnly contending that the trial of Trump is ‘unconstitutional’ or insist that his conduct before and during the insurrection on 6 January 2021 was (literally) unimpeachable say the same, all other things being equal, if the proceedings were against Clinton?

Similarly, would political and media supporters of the government of the United Kingdom still nod-along (and indeed clap and cheer) if it were Corbyn threatening to break international law in respect of Northern Ireland?

Of course not.

Indeed, in respect of the Clinton example one only has to look at the casual republican partisanship of the impeachment of Bill Clinton in 1998 to show how easily roles can be reversed.

*

So the basic test for any politician or media pundit when invoking any argument from constitutional principle should be simple.

Would that politician or media pundit still assert that principle, and just as emphatically, in respect of a political ally or opponent, as the case may be?

‘Would you say the same, if it were..?’

If so, the assertion of that constitutional principle has proper purchase, and it should be taken seriously.

And if not, like an unwanted book of David Hume, the contention should be committed to the flames, for invariably it will be sophistry and illusion.

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Why Vernon Bogdanor’s Telegraph piece needed a response – and why the constitution of the United Kingdom does not care about your nostalgia

11th February 2021

Over at Prospect magazine yesterday I set out a brief response to a piece by Vernon Bogdanor on Brexit and the constitution.

The first version of my Prospect post was a sentence-by-sentence ‘fisking’ of the Telegraph article – until I realised that such an approach gave equal space and prominence to each error and unsubstantiated assertion.

Such an approach would be a problem in this instance because there was one flaw so fundamental that it warranted addressing in and by itself.

The fundamental mistake was a refusal to accept that the Good Friday Agreement transformed the constitutional arrangements of the United Kingdom.

Indeed, as I set out in that piece and have said before: in practical terms, the Good Friday Agreement is now the most important single document in the constitution of the United Kingdom.

It is certainly far more significant than the old constitutional fogey favourites such as Magna Carta and the Bill of Rights.

Even before Brexit, the Good Friday Agreement’s express requirement that the European Convention on Human Rights must be capable of being directly enforceable in the courts of Northern Ireland severely limited the attempts of Tory politicians to repeal the Human Rights Act 1998.

And with Brexit, the Good Friday Agreement limited what forms of Brexit were available to the United Kingdom and the European Union.

Other than a ‘hard border’ requiring impediments on trade and commerce between the north and the south on the island of Ireland, there were only two possibilities.

One was that the whole of the United Kingdom remained (excuse the pun) within the European Union single market and customs union to the extent it affected any Northern Irish matter – and this was the approach favoured by former prime minister Theresa May.

Or the alignment was only between the north and south parts of the island of Ireland, thereby meaning the friction of customs and regulatory checks was between the island of Great Britain and Northern Ireland – and this was the approach favoured by prime minster Boris Johnson and for which he won a general election mandate.

There was no other way the problem could have been addressed.

*

But stepping back from this problem and its practical solution, it is difficult to think of any other single legal instrument that has shaped public policy in such an emphatic way.

And this is rare in the politics of the United Kingdom.

This is because the doctrine of parliamentary supremacy means that usually a government in Westminster with an overall majority will get its way.

The notion is odd that anyone can point to a legal document and say ‘no, Westminster government, you cannot just do as you wish because of this legal instrument’.

But this is what has happened.

Faced with this unusual constitutional phenomenon, there are two approaches.

*

The first approach, adopted by Bogdanor in the Telegraph article is to try to force the constitution into the box it was in before the Good Friday Agreement.

That is to take the pre-1999 constitutional arrangements of the United Kingdom as the standard from which things have since deviated, and to cure such deviations by reasserting a classic model.

Here the very final sentence of the Telegraph piece is the tell: “Today’s argument is about the cohesion of the kingdom”.

*

The second approach is to try to see how the constitution has changed without prioritising one moment of the constitution’s development over the other.

The Good Friday Agreement is not about ‘the cohesion of the kingdom’.

The Good Friday Agreement is the recognition that in respect of Northern Ireland there is a contested polity.

The agreement then regulates that contested polity by positing the absolute standard of consent.

The United Kingdom, to invoke a phrase, has no selfish or strategic interest in Northern Ireland remaining part of the union, ‘cohesively’ or otherwise.

The agreement provides that any political question in respect of the position of Northern Ireland has to be approached not only from the perspective of the United Kingdom but also of Ireland.

The agreement also provides for an all-island and cross-border approach where possible, the granting of citizenship rights, and for the removal of visible infrastructure on the border.

To demand that the United Kingdom to again be ‘cohesive’ is to miss the point of the Good Friday Agreement.

The Good Friday Agreement is the (realistic and mature) recognition that in respect of Northern Ireland the ‘kingdom’ is no longer ‘cohesive’ but is contested.

*

The twin perils of constitutionalism are fogeyism and utopianism.

Fogeyism is the view that previous constitutional arrangements (either real or imagined) are inherently meritorious and are prescriptive and binding – and that any departure from these previous arrangements is unsound and should be resisted.

Utopianism is the view that the only constitutional reforms worth contemplating are to achieve certain ideals: A written constitution! Abolition of the monarchy! Abolition of the House of Lords!

(I have written on this later approach here.)

Perhaps it is because we do not have a codified constitution that constitutional discourse in the United Kingdom – or in England, to be more exact – is so impoverished.

Both the fogeys and the utopians prioritise a normative approach to constitutionalism – preoccupied with what they aver the constitution should be, rather than what it actually is.

What both miss is a positive approach – for, in descriptive terms, all a constitution is is the answer to the question: how is this polity constituted?

And the descriptive answer to that question will change from time to time, sometimes in accordance with your values and sometimes in breach of them.

The constitution of the United Kingdom – that is, the descriptive answer to the question of how the United Kingdom is currently constituted –  is just there, and it will always be there is some form as long as the United Kingdom exists.

And the constitution does not care for your nostalgia – or your utopianism.

*

POSTSCRIPT – 4pm same day

Bogdanor has now responded to my response here – nothing in each changes anything, and I stand by my position that his Telegraph article fundamentally misuunderstands the constitutional significance of the Good Friiday Agreement.

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‘What’s all this? This is a court, this ain’t fancy dress’ – If you think a cat filter is ridiculous, you should see what judges and barristers sometimes have to wear in court – and why they should not

10th February 2021

One of the joys of the internet are cat videos, and for those interested in the law there was this cat video yesterday.

This may indeed be one of the funniest things you will ever watch.

But there is a more serious point worth making, as we rightly collapse and giggle at this footage.

In the United Kingdom, at least, judges and barristers are often required to wear things which are no less ridiculous than a cat filter.

*

Here two quotes come to mind.

First, a sanitised one from the immortal Withnail and I:

‘What’s all this? This is a court. This ain’t fancy dress.’

‘You think you look normal, your honour?’

*

Second, and somewhat more earnest, is George Orwell in his essay the Lion and the Unicorn:

‘The goose-step, for instance, is one of the most horrible sights in the world, far more terrifying than a dive-bomber. It is simply an affirmation of naked power; contained in it, quite consciously and intentionally, is the vision of a boot crashing down on a face. Its ugliness is part of its essence, for what it is saying is ‘Yes, I am ugly, and you daren’t laugh at me’, like the bully who makes faces at his victim. Why is the goose-step not used in England? There are, heaven knows, plenty of army officers who would be only too glad to introduce some such thing. It is not used because the people in the street would laugh. Beyond a certain point, military display is only possible in countries where the common people dare not laugh at the army.’

And similarly, in the United Kingdom, we often dare not laugh at judges and barristers, regardless of how silly their paraphernalia looks.

Because of traditions, and deference.

Because we are conditioned in England to think it perfectly normal that our system of justice is administered in eighteenth-century costumes in ill-suited and creaking Victorian buildings.

That all these anachronisms are as much a part of the natural stuff of law as the doctrine of consideration or the rule against perpetuities.

*

Of course, there are practical considerations.

Those at the criminal bar will say, with force, that the robes and wigs give them helpful anonymity.

But this argument from utility does not justify the wider use of fancy dress – and many other legal systems manage with no more than simple and almost inconspicuous robes, if that.

*

Now look again at the cat filter video.

But this time watch the judge instead.

This is what the judge himself tweeted:

The judge was calm and professional.

The judge did not need fancy dress.

Indeed, no judge or barrister or any lawyer needs to wear fancy dress as an end in and of itself.

(Yes, there may be an exception for criminal practitioners.)

Those who witter on about the ‘majesty of the law’ may as well talk of the absurdity of the law.

*

As this blog averred the other day, there is no inherent reason why many court hearings – as with council meetings – cannot now be done virtually as the norm.

And if this is the case, all the visual gimmicks insisted on in actual physical court hearings no longer have any purpose, if they had a purpose at all.

Wearing wigs and robes may perhaps give a sense of occasion in a large gloomy draughty court room, but they have no place in a virtual hearing.

A good judge does not need to rely on such devices, and a poor judge should not be able to hide behind them.

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The noises made by United Kingdom ministers complaining of exclusion from European Union decision-making is the sound of Brexit

9th February 2021

One delight of the internet age is that you are more likely to see copies of original political correspondence.

Before the late 1990s you could have a serious interest in politics and public affairs and never see a copy of an official letter on headed paper.

Now, though usually when it suits a politician or official involved, you will see formal correspondence as images attached to tweets or embedded in news articles for you to scroll and look at for yourself.

On the face of it, this is a boon for transparency: you get to see what these letters say for yourself, rather than relying on the spin of ‘a friend of the minister’ or the rushed summary of a busy reporter.

But this is somewhat illusory, for three reasons.

First, as mentioned, one almost always only gets to see what it suits somebody with power for you to see.

Second, some of the politicians most adept at the game of letter writing for publication – such as Michael Gove at the cabinet office – are in charge of government departments with miserable records in respect of freedom of information.

And third, the letters are invariably political rather than administrative devices, written with the audience of supporters and media in mind, rather than to inform the recipient.

So, notwithstanding the grand headings and formal paraphernalia, such letters should be presumed to be mere propaganda and gestures, unless a more serious nature can be shown.

*

But.

Sometimes such letters can be unintentionally revealing.

And two such telling letters entered the public domain yesterday.

The first is from Gove and it is in respect of article 16 of the Irish protocol.

2020_02_02_-_Letter_from_CDL_to_VP_Šefčovič

As with any Gove letter the first task is to strip off the all the performative politeness, as one would do with the needless extra wrapping of something that may be useful underneath.

But what I saw as notable about this letter was not the supposed main subject of the botched invocation of article 16 by the European Union – on which the United Kingdom has a fair point, though here it is being shamelessly exploited – but a comment made by Gove in passing.

‘We were not consulted on this Regulation either.’

There was no formal need for the European Union to have consulted the United Kingdom on this new regulation.

The previous version of the regulation – which had cited article 16 – did mean that the United Kingdom should have at least been notified in advance.

But this was not the case with the replacement regulation.

The revised regulation was entirely a matter for the European Union.

And the reason why it was entirely a matter for the European Union is, well, because the United Kingdom has departed from the European Union.

Not being part of the formal decision-making, policy-making and law-making of the European Union is what Brexit means.

Of course, Brexit also means many different other things to different people.

But the one thing which Brexit has to mean is that the United Kingdom is no longer part of those institutions of the European Union that make decisions, or formulate and apply policy, or adopt and implement laws.

This is the necessary implication of the United Kingdom ‘taking back control’.

What did Gove and other Brexit-supporting politicians think Brexit meant?

*

Another letter from another minister was from George Eustace.

Here the United Kingdom government is ‘surprised’ that the European Union has ‘changed its position’.

One fears that the United Kingdom will have to get used to be being ‘surprised’.

(Though any minister or official who is genuinely ‘surprised’ by what a counterparty does is not doing their job properly – as the awareness of and planning for possible contingencies is the basis of any sound public policy.)

Again, as with Gove’s letter, the United Kingdom government does not appear to realise that the United Kingdom is now merely a ‘third country’ for the purposes of European Union decision-making, policy-making and law-making.

Unless the European Union has agreed otherwise in the withdrawal or the trade and cooperation agreements, the interests of the United Kingdom has no more purchase on the conduct of the European Union than any other non-member of the European Union.

That is what Brexit means.

*

There will be, no doubt, many more complaints from United Kingdom ministers – and from their political and media supporters – about the European Union making decisions, formulating and applying policy, and adopting and implementing laws, that are not to the advantage of the United Kingdom.

Supporters of Brexit tended to emphasise the positive-sounding ‘taking back’ of ‘control’ – but the immediate and necessary consequence of Brexit is instead the formal exclusion of the United Kingdom from general European Union decision-making, policy-making, and law-making.

And so, just as ministers complaining about adverse judicial decisions is the sound of a working constitution, the noises of ministers unhappy about what the European Union does and does not do is the sound of Brexit.

**

FOLLOW-UPS

From time to time, this blog will link to interesting things relevant to previous posts.

On yesterday’s post on the Queen’s Consent, please see these further Guardian reports (here and here) and also this informative article by Adam Tucker, the leading constitutional law academic on the subject.

On the post on ‘Sovereignty’ and Brexit, many have pointed to this post by Alastair Campbell.

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