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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This has been an eventful week for law and policy – and for breaches of law and for a lack of a policy.
The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.
This was not a slip of the tongue.
Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.
No: law-breaking was now a considered government policy.
It was a quite remarkable moment.
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That this was now a formal government position was then demonstrated by two other events.
First, the government’s senior legal official – the Treasury Solicitor – resigned on this issue (and my Financial Times post on this significant resignation is here).
Second, the government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.
These two events show that the government’s proposal for law-breaking is not a sudden or improvised development.
A lot of time, effort and resources has gone into this.
The resignation of the Treasury Solicitor appears to have been after a number of Whitehall exchanges involving ministers, officials and government lawyers, as well as external counsel.
Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.
This proposal has been a long time in the making.
We all only got to know about it this week.
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Any constitutional crisis – potential or otherwise – exists on two planes.
The first is the plane of high constitutional principle.
Here the most relevant constitutional principle is that of the Rule of Law.
Put simply the principle here can be articulated as: the government is not above or beyond the law.
The government’s proposal may also raise (or will soon raise) constitutional issues such as the relationship between the two Houses of Parliament (if it is voted down by the Lords), the Irish border and the position of Northern Ireland, and the situation of the devolved administrations.
These constitutional matters are broad and could be relevant regardless of the detail of the proposals – whether the policy in question was about terrorism or agriculture.
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The second plane is that of policy.
What is the policy objective that the government is seeking to achieve that, in turn, raises such constitutional concerns?
Here something does not make a great deal of obvious sense.
The purported concern is about the state aid regime on the island of Ireland after the end of the Brexit transition period on 31st December 2020.
I explain some of the detail of this purported concern on this video for the Financial Times.
There are two reasons why this being the cause of this potential constitutional crisis does not add up.
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First, there are other ways the government could address their apparent concerns about state aid and Ireland following Brexit.
For example, the government could have a post-Brexit state aid policy that it could discuss with the European Union in a sensible and mature manner, and both sides could then agree how to deal with any conflicts with the withdrawal agreement and the Irish Protocol it contains.
So whatever the ultimate cause of this potential constitutional crisis, it is not (and cannot be) any concrete policy differences on state aid and Ireland – because the United Kingdom government does not (yet) have a concrete policy on state aid and Ireland.
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Second, the provision in the withdrawal agreement which the government asserts is the problem – Article 10 of the Irish Protocol – is something this very government negotiated and agreed to itself.
The government would have known the effect of what it was agreeing to – before signature the government legal service would have explained to ministers all the provisions in the withdrawal agreement.
And not only did the current government agree the withdrawal agreement, it campaigned at the December 2019 general election on the basis of putting this ‘oven-ready’ agreement into effect.
And the withdrawal agreement was indeed swiftly passed into law by an Act in the days before the United Kingdom formally left the European Union on 31 January 2020.
In essence: the withdrawal agreement was something this government negotiated, signed, boasted of, campaigned on, received a mandate for, and passed into domestic law.
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And now the same government wants to break that same withdrawal agreement, less than a year after it was agreed and signed.
The problems with this are, for anyone other than the most partisan supporters of the government, stark and serious.
No other country will take the United Kingdom seriously in any international agreements again.
No other country will care if the United Kingdom ever avers that international laws are breached.
It is a stunning self-trashing of the United Kingdom’s place in the world.
And domestically the predicament is much the same.
Who will take seriously the government’s insistence on abiding by the law if the government itself openly has law-breaking as public policy?
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I love and enjoy watching and commenting on any constitutional drama
But usually the constitutional drama makes some sort of sense.
Here there seems a deep mismatch – a disconnect – between the potential constitutional crisis and the underlying policy problem.
The United Kingdom does not (yet) have a post-Brexit state aid policy, and with open eyes it agreed to the Irish Protocol less than a year ago.
The problems, if any, with state aid in Ireland after 1 January 2021 do not require the United Kingdom government to propose and legislate for, in September 2020, a deliberate policy of law-breaking.
There is no rational explanation for what the government is doing.
And if there is no rational explanation then that leaves fanaticism, cynicism, conspiracy and/or idiocy.
Each of these are possible – either alone or in combination – but the lack of any genuine policy basis for risking a constitutional crisis, let alone forcing one, makes this a very strange constitutional drama.
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This, however, is not yet a constitutional crisis.
There is every likelihood that the tensions here will be resolved by the government u-turning or being defeated during the Bill’s passage through Parliament.
If enacted, then the Courts may find a legal basis for limiting the use of the regulations made under the Act.
That would be the constitution working.
We are not at the ugly stage where a government minister is actually making a regulation that would break the law and there was no way of stopping this.
That would certainly be a crisis, by which I mean as serious and unpredictable situation where there is no obvious resolution – a constitutional contradiction rather than a tension.
A government deliberately breaking the law would create such a situation – and nobody can know what would happen next.
So this is still a potential constitutional crisis, not an actual one.
But it is an extraordinary and spectacular potential constitutional crisis.
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ps Title amended to add ‘Part I’ on 13 September 2020
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And now look at the date of this tweet: it is from the run-up to the 2016 presidential election.
In recent days, Trump has tweeted a number of times about ‘Law & Order!”.
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One obvious reaction would be to say that his recent demands for “Law & Order!” show that he failed to keep the commitment in his 2016 tweet.
Another obvious point is that Trump’s misuse of pardons and commutations, his non-compliance with legal requirements and so on are a negation of law, just as his stoking of violence for political ends is the negation of order.
But such ‘reply guy’ points do not really matter.
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The potency of “Law & Order!” does not depend on Trump’s record or his consistency.
What is significant about the 2016 tweet is this was how he approached the last election, with the same message as now, and it was effective.
And it may be effective again.
The fact that, in substance and in practice, Trump is not interested in either law or order is irrelevant.
“Law and Order!” has nothing to do with law and order.
It is about coercive power and about those who that power should be inflicted upon.
It is about control and it is about supremacy.
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Of course, it is easy to mock Trump, and it is easy to point out the inconsistencies and the lies.
But he has worked out a way to get power, and his opponents so far have not.
Do not underestimate him.
(Johnson and Cummings have also worked out how to get power, and their opponents also so far have not.)
Waiting for the mass of lies, absurdities and inconstancies to somehow self-implode, and thereby eject Trump (or Johnson), is not going to work.
The thing (for want of a better word) is self-sustaining: it feeds off the simple opposition that it creates.
And there is not point ‘matching’ it, as those promoting this thing are better at lies, inconsistencies and absurdities than their opponents.
The thing would have to be defeated some other way.
And that defeat must be political and electoral.
For example, looking to the courts or to special counsel investigations is wishful thinking.
Lawyers and judges are many things but they are not fairy godmothers.
(And “activist lawyers” also feed the thing.)
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Pointing out lies does not work when a sufficient number of voters do not mind being lied to.
And so the daunting task for the opponents of Trump (and Johnson) is to get enough voters to care that they are being lied to.
To care about law and order, and not “Law and Order!”.
And that ain’t going to be easy.
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President Trump says a lot of tosh but sometimes a word or phrase is telling.
“I’ll tell you who’s meddling in our elections,” Trump says when asked about US counterintelligence officials saying Russia, China and Iran are trying to interfere. “The Democrats.”
Here Trump goes on to make a partisan point about the Democrats “wanting and insisting on sending mail-in ballots, where there’s corruption all over the place”.
An opposition party in a democracy seeking to encourage the turnout for a vote is not, of course, sinister.
That is what political parties do in a democracy.
And if there is corruption or other irregularities then that is what electoral law is there to regulate.
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But this is to take his substantive point too seriously: the issue is the ease with which he adopted the word “meddling” from the question and employed it in his answer against the party challenging him in November’s election.
“Meddling”
The impression he gave is that he considered the legitimate political activity of a political party as a hindrance – a wrongful intervention in the natural order of things.
And this impression is similar to the impression given by the Johnson-Cummings government in the United Kingdom in respect of constitutional checks and balances on the power of the executive.
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Before the general election, when Johnson-Cummings did not have a majority in parliament there was the attempt to bypass the legislature with the (unlawful) use of the prorogation.
After the election, now they have a majority, the main attacks are on the independent judiciary and the impartial civil service.
The impulse is always the same: the desire to remove formal impediments.
There often seems to be no greater purpose – no particular policy to be driven through – than unrestricted executive power as an end in and of itself.
The objective is the elimination of anyone in a structural position to say ‘no’ or even ‘please think about this carefully’.
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By framing any such restraints as “meddling” the executive-minded, such as Trump or Johnson-Cummings, are doing three things.
First, they are seeking easy claps and cheers and nod-alongs from those in politics and the media who should know better, as well as from voters generally.
Second, they are signalling that they consider any form of opposition to them getting their way as inherently illegitimate – and so that there are no constitutional or democratic principles of more import than the government just getting its way.
And third, they are converting basic constitutional or democratic principles into partisan devices – and so those who support and defend certain political fundamental norms (regardless of party) become part of a perceived opposition.
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The worry is that they can and will get away with this for as long as possible.
There are, of course, often short-term political advantages to be had for the knave or the fool by undermining any political and constitutional system.
And one hopes that the system would be self-correcting, and that basic constitutional and democratic norms will somehow reassert themselves.
But what happens when, as now seems to be the case in the United Kingdom, such opportunism and cynicism become the ongoing policy of the government?
Will basic constitutional and democratic norms reassert themselves this time?
Or will this ‘executive power project’ carry on and on?
And, if so, wouldn’t that be genuinely ‘meddlesome’ behaviour?
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