David Allen Green

A test for constitution-mongers

17th June 2019

(Title page from the Edmund Burke’s Reflections on the Revolution in France, 1790)

Constitutional law should be boring.

For ages, the subject was boring – entire pages, sometimes entire chapters, of UK constitutional law books would have no leading cases from the lifetimes of those teaching the subject, let alone those being taught.

The party battles and the political crises would come and go, but the settled practices of the constitution would carry on much the same.

And now it is the most interesting time to be a constitutional lawyer in England since the 1680s.

(That last sentence is deliberately limited to England, as the constitutional histories elsewhere in the United Kingdom are different.)

This is not to say we have (yet) a constitutional crisis.

So far, our constitution has been (fairly) resilient in the face of executive power-grabs and novel predicaments.

The executive was stopped by the courts from making the Article 50 notification without parliamentary approval.

And the executive was then stopped by parliament (using at times some ingenious and arcane procedures) from taking the UK out of the EU without a deal.

Of course, neither of these outcomes were inevitable and could have gone the other way – and the latter may still happen on Hallowe’en.

But to the extent a constitution exists to resolve tensions so that they do not become contradictions, the UK constitution has done (generally) well so far with Brexit.

Over at Prospect magazine I have done a short piece on the constitution.

My argument in essence is that the test for a codified (or any) constitution is that it can recognise and regulate tensions between the elements of the state (the main elements being the executive, the legislature and the judiciary).

Some who read perhaps too quickly (if at all) raced to characterise my piece as an argument for an uncodified constitution.

But I am ultimately neutral on the form of any constitution – I am more interested in how well it functions.

Neither a codified nor an uncodified constitution is inherently superior.

The test is a practical one.

And the test for those who urge codified constitutions (who Edmund Burke wonderfully called “constitution-mongers”) is to show how their models and proposals would work.

It is not enough to assert that, of course, a codified constitution would be better as a matter of principle or of faith.

Show us the proposed constitutional code – the detail and the drafting – and let it be examined and tested.

Thank you for reading me on this new(ish) blog, where I am hoping to blog almost daily now I am back from a break.

I expect to be blogging here more often, instead of spending time on Twitter.

Please subscribe, there is subscription box above (on an internet browser) or on a pulldown list (on mobile).

Comments are welcome but pre-moderated, and they will not be published if irksome.

Causes and effects and Brexit

24th April 2019

When thinking and writing about Brexit I often recall the wise words of the great historian Conrad Russell.

Russell set about, between the mid-1970s and the early-1990s, re-considering and then revising the matter of what led to the English civil war.

His conclusion was, in effect, that we were asking the wrong questions.

His view was that to explain causes you had to consider first effects.

Here, the passage which I keep remembering is in his The Causes of the English Civil War, the printed edition of his Ford Lectures of 1987-88:

“In investigating causes, the first necessity is to match them with effects, and it therefore seems a logical priority to begin by trying to establish the effects for which causes must be found.

“If the effects are wrongly postulated, the causes will be wrong also.

“If we discuss causes without any investigation of effects, we are simply indulging in unverifiable speculation.”

(Sentences separated out for ease of on-screen reading.)

So what are the “effects” of Brexit which we would need to explain if we are to understand the “causes” of the current predicament.

It would not be enough to explain why there was a referendum in June 2016, as the result was close and could have gone differently.

It would also not be enough to explain why there was a close Leave victory, as that would not explain (by itself) why the UK government then adopted the approach it did, from all other possible approaches.

And it would not be enough to explain why the UK government handled Brexit policy so badly after the referendum, as a great deal also came down to how EU27 responded, and this would need explaining in turn

There would seem to be no one grand cause of Brexit but a complex of different origins, any of which could have been different, and could have ended with different outcomes.

In the years to come, some historians and pundits will posit that whatever outcome we end up was inevitable all along.

(Those historians and pundits currently, however, have not any idea what will happen.)

As one great wit put it: history is a box of tricks we play upon the dead.

Russell himself contended that the “effects” of the English civil war which needed explaining were: the Bishops’ wars, the English defeat, the failure to reach settlement, the failure to dissolve or prorogue parliament, the choice of sides, the failure to negotiate, and the problems of the king’s diminished majesty.

He averred:

“The removal of any one of these seven things could have prevented the civil war as we know it.”

This was his view, of course, other historians disagree – though few if any serious historians now suggest that there was just one or two big causes of the English civil war.

The task for those of us who are seeking to explain the extraordinary contemporary phenomenon of Brexit is not to get caught up too much in the excitement of daily events, and also to not readily adopt the easy benefits of hindsight.

In other words: the key question is not only about why and how Brexit has unfolded in the way it has, but to also grasp why and how events did not go differently.

Thank you for reading me on this new(ish) blog.

And if you want to subscribe, there is subscription box above (on an internet browser) or on a pulldown list (on mobile). I expect to be blogging here more often than being on Twitter for a while.

Comments are welcome but pre-moderated, and they will not be published if irksome.

Welcome to the new blog

17th March 2019

Jack of Kent is no more.

I had been getting tired of the old fellow for some time.

Having a blogging name was something you did ten or so years ago, and I chose the name of Jack of Kent after the medieval wizard who outwitted the Devil by close attention to what was said.

It seemed a good name for a legal blog.

But one obvious problem was that my name is not Jack and (although I lived in north Kent when I started the blog) I am not from Kent.

Another problem was that I recently felt I did not know what to do with the JoK name – was it a distinct brand or a distinct approach, was it a character?

It was beginning to feel all rather odd, as I did not tweet nor do my journalism under the JoK name.

So I have now killed the old fellow off.

Bye, Jack.

This blog is now under the name I do my legal commentary on Twitter and at the Financial Times and elsewhere.

You will see the url has changed.

The JoK name may still crop up in update emails, and so on, until the name change works its way through the system.

And I am afraid a lot of old links will now be dead. I am sorry for the inconvenience that will cause.

But I have also done more than change the site name.

I have taken down my old posts, as it seemed a good moment to start afresh with my online presence.

(Though over time I may re-post some of the old posts which seem worth re-publishing.)

One nice thing about blogging independently is that you can take things down as easily as you can put things up.

Independent blogging (as opposed to blogs on commercial or news sites) is, in essence, a form of pamphleteering. It is a flexible and often ephemeral medium.

I think the time has arrived to start afresh with a new personal blog.

Indeed – though I cannot promise – I may even get into the habit of blogging more regularly on here (instead of tweeting).

And it must be said, WordPress is now a lot more user-friendly than it used to be.

Thank you for joining me on this new(ish) blog.

And if you want to subscribe, there is subscription box above (on an internet browser) or on a pulldown list (on mobile).