The current government of the United Kingdom has a distinctive approach to politics, and it has a distinctive approach to policy.
In both cases the approach is associated with the government’s senior adviser Dominic Cummings and, to a lesser extent, the prime minister Boris Johnson.
The approach to politics has as a feature a disregard for the settled norms and practices of conventional politics: elections and referendums are there to be won, and it matters little about how that is done.
It is a focused and, in terms of both the 2016 referendum and the 2019 general election, a successful approach.
And because of this approach, they have power and their critics, however justified do not.
The approach to policy is similar, and can also be characterised as moving fast and breaking things.
There is no need for formal consultation exercises or procurement procedures, it is enough for there to just be central direction and directives.
And any policy will be formulated and implemented not by the traditional civil service in its traditional way, but by external hires and special advisers.
It is an approach which is not so much contrarian but indifferent to how policy was made and done previously.
But the lack of structure and the constant sense of rush comes at a cost, and because of that cost such an approach may be unsustainable in the medium to longer term.
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There are currently news reports about a resignation of a Downing Street adviser and of general dysfunction around the prime minister.
And this would be bad at any time.
It would be very bad if the United Kingdom faced just one major challenge – either a pandemic or the imminent departure from the European Union in practice (though technically the departure was back in January), with or without a deal.
But for this disarray to happen in the midst of a resurgent pandemic (and a second lockdown, that in an of itself will be widely devastating), and days away from the end of the Brexit transition period, is about as bad as politics and policy can be in peacetime.
At the base of the current predicament is a lack of seriousness about policy.
Whether it be the self-inflicted problem of Brexit or the force majeure of a pandemic, the government at its most senior level has not taken policy making and implementation seriously.
This is because policy is just regarded as politics as other means.
And, in turn, this comes down to populism – which can be described as the promotion of easy answers in exchange for electoral support.
Populism can succeed in elections and referendums, and it has recently done so, but it cannot deal with hard policy.
And therein is the contradiction forcing the current political chaos: what works in obtaining power can often be the very reason why being in power then goes so badly.
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President Donald Trump is many things, but there are many things which he is not.
He is not, for example, a billionaire businessman, but instead a person who tells the story that he is a billionaire businessman.
And he has not been a successful or accomplished president, but instead someone who tells the story of having been a great president, perhaps the greatest ever.
Trump is, in short, a story teller.
Even the things for which he was famous before becoming president were exercises in story telling.
TheApprentice TV show is, for instance, not about how to be successful in business but about giving the impression of being successful in business.
(Indeed, many of the figures people most associate with being ‘successful business people’ are usually deft brand promoters, their brand being they are successful at business.)
But Trump tells other stories, and knows well the power of stories.
The ‘birther’ phenomenon was about casting doubt on the legitimacy of the election as president of Barack Obama.
It did not matter to Trump that the story was untrue: the subversive impact of the story was the point of it.
Political stories that undermine legitimacy are, of course, not new.
Historical examples include the ‘warming pan’ story promoted to delegitimise James Stuart as pretender to the throne, and the ‘stab in the back’ story promoted by Hitler and the National Socialists.
And now Trump is telling a new story, the story of the stolen election.
Trump and his lawyers and advisers know that the election is lost.
As this blog set out yesterday, the presidency of Trump will end on 20 January 2021 by automatic operation of law, unless something extraordinary and unexpected happens.
Yet for various reasons, it is expedient for Trump and his supporters to affect that this is not the case.
In an extreme example, the American Secretary of State even said in a formal setting that there will be a smooth transition to a second Trump term.
“There will be a smooth transition to a second Trump administration.” — Secretary of State Mike Pompeo, one week after Trump lost the election to President-Elect Joe Biden pic.twitter.com/G8JwYWZN1I
Pushing this narrative may be to create political leverage, or to raise funds, or to mobilise supporters, or whatever.
The motive is less important that the fact that the story is being told.
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Yet, Trump is not the only important story teller at this political moment.
Joseph Biden and his campaign team are also promoting a narrative.
They have posited an ‘Office of the the President Elect’.
They are publishing summaries of conversations between Biden and world leaders.
Today, President-elect Joe Biden took part in separate congratulatory calls with the leaders of France, Germany, Ireland, and the United Kingdom. pic.twitter.com/vCyAVVF3qw
The Biden campaign are, in essence, telling the story of political stability and a return to normality.
This is a more sensible and refreshing story, compared with the subversive story being promoted by Trump and his supporters.
And any sensible person will support Biden over Trump in this.
But it is still a battle of storytelling, like a contest of meistersingers, or an eisteddfod, or a rap battle.
And what is at stake is the sense of legitimacy of the election.
It was not enough, sadly, for Biden to win the popular vote and to win more electoral college votes.
There is now a second battle as to the legitimacy of the election, notwithstanding that Biden had an emphatic electoral victory.
Unless Biden prevails in this second contest, the Trumpite narrative will linger: Biden in a warming-pan, the American nation stabbed in the back and so on.
It will not be enough for Trump to be defeated, he must be seen as being defeated.
And, in this, one should not underestimate Trump.
For he is a great mendacious political storyteller, perhaps one of the greatest ever.
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A week ago today, also a Tuesday, was election day in the United States.
The day seemed go on forever, for days, before it became apparent that Joseph Biden had won and the media networks ‘called’ the election.
It is, however, only apparent that he will be the next president: votes need to be certified by the States, the electoral college needs to meet, there needs to be a meeting of Congress to announce the winner, and so on.
There is therefore a possibility that something somehow could happen which would prevent Biden becoming president.
That said, on the information currently available, any legal challenge brought by Trump does not seem to have a realistic chance of success.
It is easier to threaten a case than to win one.
And for any legal challenge to prevail there needs to be substantial evidence and credible legal argument.
Law is not magic, and a party will not be granted a remedy just because of displeasure or disappointment.
Any (serious) lawyer for Donald Trump should be assessing the extent to which the evidence and arguments available really add up to dislodging the entirety of the majorities being reported in the key States.
There may, of course, be ‘non legal’ reasons for not conceding defeat: vanity, an attempt to create a false narrative, a desire to continue with fund-raising, an exercise in contriving some leverage for a ‘deal’ exchanging cooperation on transition for immunity from prosecution, and so on.
But such ‘non-legal’ reasons ultimately depend on the credibility and substance of the potential legal challenges.
Unless Trump and his legal team can fashion a good legal argument, then the votes will be certified, the electoral college will meet, Congress will approve, and so on.
And so, unless something exceptional and currently unforeseeable happens, Trump will cease to be the President of the United States on 20 January 2021, by automatic operation of law.
At which point, if he remains in the White House without permission, he would become a mere trespasser on federal property.
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Yesterday someone posted on Twitter the following (now deleted) tweet.
Another (also now deleted) tweet linked to a video of what seemed to have been an exchange between a person called Brad and the police, in which Brad sought to rely on his rights under Magna Carta.
The video is still available on Facebook and is worth watching in full.
A quick internet search also reveals sites like this one purporting to set out your rights under Article 61 of Magna Carta.
And on Twitter there are still tweets such as this.
Is there a right of lawful rebellion under Article 61 of Magna Carta?
Does displaying Article 61 of Magna Carta in a shop window mean you cannot be fined or closed?
Let us find out.
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Magna Carta is Latin for ‘the Great Charter’, a legal document written in Latin that first came into existence in 1215.
(By convention, and because it was originally in Latin, the ‘the’ is often missed out in the title by historians and lawyers when discussing Magna Carta, which I find amusing but is really not at all significant.)
You will see this original Magna Carta is divided into numbered sections (known to historians and lawyers as chapters, not ‘Articles’).
At Chapter 61 is the following:
SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:
The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter.
If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us.
Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command.
If one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were.
In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear.
The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power.
We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party.
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You will see that the phrase ‘lawful rebellion’ does not appear in Chapter 61, and neither is there anything which provides that if Magna Carta is displayed it renders a person or business immune from closure or fines.
The provisions is instead what is called a ‘security’ provision, setting out how the rights under Magna Carta could be practically secured and enforced.
If you read the provision you will see that the rights and powers of security are given to twenty-five barons (elected by other barons).
There is nothing in the provision to support the claims made on its behalf by the social media posts set out above.
If you do not believe this, read the provision for yourself.
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But even if the original text of chapter 61 of Magna Carta had provided for lawful rebellion, or that the mere display of Magna Carta in a shop window would be enough to ward off law enforcement officials, the provision was removed within a year, when Magna Carta was reissued in 1216.
(It was reissued and amended many times.)
There is no sensible explanation for why a provision that was only in force 1215 to 1216 (and then only granted a power to 25 barons) would have the effect in 2020 of preventing a shop being closed under public health regulations if Magna Carta was placed in a shop window.
And that is the truth about Article 61 of Magna Carta.
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There is, however, a serious point to be made about the various claims made about ancient legal documents, such as Magna Carta or the Bill of Rights.
There is not a strong tradition of ‘constitutionalism’ in England, and in the United Kingdom we do not have a portable and accessible document we can point and say ‘this is our constitution’.
And in the absence of a widely shared knowledge of the constitution, claims about Magna Carta, the rights of freemen of the land, and so on, become popular but unchecked.
As a matter of law and history, Magna Carta is now little more than a legal ornament rather than a living instrument, and it is rarely if ever successfully relied on in practice.
It is a legal text which politicians and others can praise safely, as it provides no real protections.
(In contrast, legal texts that do actually provide practical rights such as the Human Rights Act 1998 are often attacked by those same politicians.)
Some of Magna Carta is still in force, in its 1297 reissue, and you can see these provisions on the official legislation website.
And you can watch this, from another Brummie commentator on Magna Carta, Anthony Aloysius Hancock.
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There are news reports that Nigel Farage and the Brexit Party are re-branding as the ‘Reform Party’ and will campaign on the basis of ‘lockdown scepticism’.
One immediate response of many will be to sneer at and deride him and his supporters.
Just as years ago he and his United Kingdom Independence Party were sneered at and derided.
But this approach is perhaps misguided.
Farage and other political populists should always be taken seriously.
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Farage is a political hobgoblin.
He appears where there are cracks between the government and the governed, as a purveyor of easy answers.
On the European Union issue, for example, generations of politicians in the United Kingdom failed to make any positive case for membership.
Often, instead, politicians from both major parties competed with each other to sound the most sceptical about the European Union and to secure the most opt-outs.
Year on year, the crack was widening: there was no political engagement with the voters on the importance – or even the nature – of United Kingdom’s membership of the European Union.
And so, in 2016, when a government held a referendum on the question of membership, there was not the support in place to carry a Remain vote to victory.
The Leave campaign did not so much as win the Brexit referendum; it was more that Remain lost it – and they lost it because of 40 or more years of political inaction.
Farage and other opportunists merely exploited that political gap.
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Now there is another broad policy issue where there is a political gap.
The London government is proposing a lockdown for, in effect, the month of November so as to stymie the recent resurgence in Covid-19.
But for a lockdown to have effect, there needs to be be more than laws passed and subsidies offered.
A lockdown is an exercise in public mobilisation: a government is seeking a population to change its ways, to act significantly different for a significant period of time, and to do things (and not do things) that the population would not otherwise do.
Such a public mobilisation needs, in a word, leadership.
There needs to be a sense of legitimacy.
There needs to be an understanding of the evidence and the reasoning on which such a lockdown is based.
Laws – however ‘tough’ – are not enough.
It is not even a question of making laws clear, or resourcing their enforcement.
The broad behavioural change being sought cannot be brought about by coercion alone.
And the irony is that the current pro-Brexit government has become so complacent on the basis of the supposed ‘will of the people’ referendum mandate justifying what they do that they have disengaged with the people.
Clarity and transparency cannot co-exist with closed and politicised decision-making.
So there is another political gap.
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And when there are political gaps, the political hobgoblins appear.
They are an index of the failure of a government to properly explain a complex policy issue and to engage with the public.
The easy answers promoted by the political hobgoblins have little or no merit in themselves, but this does not matter.
The political hobgoblins do not care, for they thrive in the political gaps.
And that is why political populists should always be taken seriously, for they are an indication of political failure.
Political hobgoblins exist to warn us.
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As a solicitor in practice I tend to specialise in commercial, media and communications law, and as a commentator I tend to explain public and international law.
(And as a historian of sorts, I am interested in law and anthropology and how complex societies can develop oral and written systems of law.)
But in addition to these areas, there are two special legal topics which fascinate and appal me.
Fascination: because I find it hard (as a western liberal writing in 2020) to believe that my own species has used and still uses the concept of law for such purposes, and so I want to understand why.
Why would and do people do these things?
Appalling: because both deal with the worst of human nature.
The first is the law of slavery: the extraordinary notion that there can be property rights for one human being in another human being.
By reason of the Black Lives Matter movement, I have recently published a few things on this (see here, here, here and here).
The second is the law of torture: the regulation of the deliberate and involuntary infliction of cruelty by some human beings on other human beings.
This second horrible subject has come up because of the United Kingdom government now seeking to make it harder to prosecute former and serving service personnel for war crimes and torture.
On this, I have done this video for the Financial Times.
Not a pleasant thing to talk about, or to listen to others talking about, but important still the same.
Please watch and listen if you can.
Thank you for taking an interest.
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In any human community larger than about 120 to 150 – Dunbar’s number – it becomes increasingly difficult to govern on the basis of sheer personality alone.
And so instead of face-to-face encounters of dominance and appeasement you have rules and commands: things that bind you – oral or in writing – because of the legitimate nature of the rule or command.
In modern societies these rules and commands are divided between the normative and the positive, and the usual word for the latter is ‘law’.
As I set out briefly over at Prospect – in a modern society a government is creature of law, and so without law it is ultimately nothing.
Even a gang of thugs with official titles will find it hard to govern a medium to large society for long on the sole basis of a series of in-your-face confrontations.
But in addition to this basic requirement for government to take law seriously for government to exist at all, there is a key additional benefit of a government promoting compliance with the law.
If the government complies with the law then it is more credible for the government to insist on the governed to comply with the law as well.
This is, of course, an argument based on convenience.
But when a government itself does not itself appear to take law seriously it undermines the legitimacy of law.
And this is the problem the government of the United Kingdom now finds itself.
The problem of legality and illegality.
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There are two events which illustrate this problem.
This appeared to be a casual breach of the applicable law, and one that he seemed to shrug off as unimportant because, by implication, laws were for other people and not for him.
In fact, this impression is to an extent unfair.
The police did investigate and they decided that, in the circumstances, there would be no further action and, even if he had been stopped on the day, he would have only got words of advice.
And so that was not law and due process averted but followed; it is just that law and due process did not get very far.
But what lingered was not the decision by the police (which was for the adviser a fortunate but not inevitable outcome) but the nonchalant indifference as to to whether the law was broken before the breach was was revealed.
And what many will remember is that neither the adviser nor the prime minister did take responsibility for the breach: nobody was sacked, and nobody resigned.
The only apology given was the adviser turning up late to the press conference to justify his actions.
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Now, months after the trip to and from Barnard Castle, we have the second event illustrating the government’s problem with legality and illegality.
The government has proposed that legislation be passed that would enable it to deliberately break the law.
This proposal has been supported by the House of Commons in principle at ‘second reading’.
It may well be that this proposal is soon dropped or defeated during its parliamentary passage.
But the damage has already been done.
The government itself is now on its very own journey to and from Barnard Castle.
A grand ‘away day’ from the rule of law.
Some supporters of the government have attempted to justify this proposal, but even few of them are convinced.
And the underlying policy issue – state aid on the island of Ireland after the transition agreement ends – is not connected to the proposal in any logical way.
There is no good reason – perhaps no reason at all – for the government’s proposed illegality.
And so the impression is again given that laws are for other people, and not the government.
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This weekend’s press has told us that the government is now considering ‘tough’ penalties for those who break self-isolation during the ongoing pandemic.
The figure mentioned for the fine is £10,000.
On what basis can the government now insist that others comply with the law?
Of course, there is the resort to coercion: the use of police and the courts.
A government should not, however, have to rely on brute force (or the threat of brute force) to get people to comply with a law, especially in the context of public health and public safety.
The government may have the brute power to seek to make the governed comply with the law but not the legitimacy to insist.
That is quite a loss for any government.
And that is what was thrown out of the car window on that journey back from Barnard Castle.
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For the current constitutional drama to have got as far as it has means that various ‘gatekeepers’ have either failed to perform their proper function or have been impotent.
By way of recap, the government of the United Kingdom is proposing to enact legislation that is deliberately intended to make it possible for ministers to make regulations that would break international and domestic law.
That the legislation is before Parliament means that the process is fairly well advanced – for presenting a Bill to Parliament is about stage seven of a process, not stage one.
The first gatekeeper would have been the head of the government legal service – the Treasury Solicitor – and we know that this is the issue over which the Treasury Solicitor has resigned.
But that resignation has made no difference: the process has continued anyway.
A second gatekeeper would have been the Cabinet Secretary, who is the guardian of the Ministerial and Civil Service Codes.
Yet, somewhat irrationally and inexplicably, the Cabinet Secretary has determined that what the Treasury Solicitor has described as breaches of law are permissible under the Codes.
So much for the civil servant gatekeepers.
Now for the politicians.
The Attorney General, who is nominally the government’s chief legal adviser, is enthusiastic about this law-breaking.
The Lord Chancellor, whose oath of office contains a commitment to the Rule of Law, has said that there are breaches of law that are ‘unacceptable’ over which he would resign, but this is not (yet) one of them.
And on the floor of the House of Commons, the Northern Ireland Secretary spoke of ‘limited and specific’ breaches of law being permissible.
So the gatekeepers of the Attorney General, the Lord Chancellor and the Cabinet generally have also permitted the the process to continue.
These gatekeepers are all checks and balances within the executive, and they usually should stand in the way of any attempt by ministers to abuse or misuse the law.
And all have failed.
So we now move on to the formal legislative process of Parliament and, if the provisions are enacted, the Courts.
And it may well be that the legislature and the judiciary are able to restrain this rogue legislation making it possible for ministers to break the law by regulations (that is, by decree).
If so, that would be an example of a working constitution.
But for this proposal to have even got to this stage, parts of the constitution have not worked.
The constitution of the United Kingdom is not codified and is reliant on checks and balances in practice that have little force other than by convention.
Only at the margins should constitutional tensions be resolved by litigation.
But what happens when the conventions do not work or are flouted?
The current constitutional drama may ultimately show, through Parliament or the courts, how the constitution works – but so far it has also show how the constitution does not work.
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In that post, there were two extraordinary facts stated that went to the current constitutional drama being serious and also novel.
The first was that a cabinet minister said to the House of Commons that the deliberate intention of the government was to break the law.
The second was that the government’s senior legal official – the Treasury Solicitor – had resigned on this issue.
These two facts indicated – perhaps demonstrated – that the current situation was significantly different from previous threats from the government to disregard the law, which have often only been briefed to the weekend media.
There were third and fourth facts which also should have been listed.
The third fact is that the government has published a Bill with the explicit power of making regulations that would break international and domestic law.
And today there is a fifth fact: the Lord Chancellor suggesting on television that a distinction can be made between ‘acceptable’ and ‘unacceptable’ breaches of the law.
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None of this – yet – constitutes a constitutional crisis.
The crisis would occur if such intended law-breaking survived parliamentary scrutiny and judicial supervision.
If such intended law-breaking did not survive parliamentary scrutiny and judicial supervision that would be checks and balances working as they should in a constitution.
But that said, this is a very different type of constitutional drama to what has gone before in Brexit, and one perhaps has to go back to the unionist threats to disregard the law before 1914 to find a historical parallel.
Of course, all this may just be politics – and there is some planned (or hoped for) political manoeuvre that the government is to execute under cover of this drama.
Such a political game does not, however, justify direct threats by the government to break the law.
Perhaps this is just a passing row, and the government u-turns this week on this proposal.
But that the government risked a constitutional crisis (as well as self-trashing its reputation as a reliable party to international agreements) will linger.
There will be an impact.
And so even if this extraordinary situation is now brought quickly to a halt, what this has created cannot end well.
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