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Recent Posts

  • A close reading of the “AI” fake cases judgment 9th May 2025
  • How the Trump administration’s “shock and awe” approach has resulted in its litigation being shockingly awful 22nd April 2025
  • How the United States constitutional crisis is intensifying 17th April 2025
  • A note about injunctions in the context of the Abrego Garcia case 14th April 2025
  • How Trump is misusing emergency powers in his tariffs policy 10th April 2025
  • How Trump’s tariffs can be a Force Majeure event for some contracts 7th April 2025
  • The significance of the Wisconsin court election result 2nd April 2025
  • “But what if…?” – constitutional commentary in an age of anxiety 31st March 2025
  • A significant defeat for the Trump government in the federal court of appeal 27th March 2025
  • Reckoning the legal and practical significance of the United States deportations case 25th March 2025
  • Making sense of the Trump-Roberts exchange about impeachment 19th March 2025
  • Understanding what went on in court yesterday in the US deportations case 18th March 2025
  • “Oopsie” – the word that means the United States has now tipped into a constitutional crisis 17th March 2025
  • Oh Canada 16th March 2025
  • Thinking about a revolution 5th March 2025
  • The fog of lawlessness: what we can see – and what we cannot see – in the current confusions in the United States 25th February 2025
  • The president who believes himself a king 23rd February 2025
  • Making sense of what is happening in the United States 18th February 2025
  • The paradox of the Billionaires saying that Court Orders have no value, for without Court Orders there could not be Billionaires 11th February 2025
  • Why Donald Trump is not really “transactional” but anti-transactional 4th February 2025
  • From constitutional drama to constitutional crisis? 1st February 2025
  • Solving the puzzle of why the case of Prince Harry and Lord Watson against News Group Newspapers came to its sudden end 25th January 2025
  • Looking critically at Trump’s flurry of Executive Orders: why we should watch what is done, and not to be distracted by what is said 21st January 2025
  • A third and final post about the ‘Lettuce before Action’ of Elizabeth Truss 18th January 2025
  • Why the Truss “lettuce before action” is worse than you thought – and it has a worrying implication for free speech 17th January 2025
  • Of Indictments and Impeachments, and of Donald Trump – two similar words for two distinct things 16th January 2025
  • Why did the DoJ prosecution of Trump run out of time? 14th January 2025
  • Spiteful governments and simple contract law, a weak threatening letter, and a warning of a regulatory battle ahead 13th January 2025
  • A close look at Truss’s legal threat to Starmer – a glorious but seemingly hopeless cease-and-desist letter 9th January 2025
  • How the lore of New Year defeated the law of New Year – how the English state gave up on insisting the new year started on 25 March 1st January 2025
  • Some of President Carter’s judges can still judge, 44 years later – and so we can see how long Trump’s new nominees will be on the bench 31st December 2024
  • “Twelfth Night Till Candlemas” – the story of a forty-year book-quest and of its remarkable ending 20th December 2024
  • An argument about Assisting Dying – matters of life and death need to be properly regulated by law, and not by official discretion 28th November 2024
  • The illiberalism yet to come: two things not to do, and one thing to do – suggestions on how to avoid mental and emotional exhaustion 18th November 2024
  • New stories for old – making sense of a political-constitutional rupture 14th November 2024
  • The shapes of things to come – some thoughts and speculations on the possibilities of what can happen next 8th November 2024
  • A postcard from the day after an election: capturing a further political-constitutional moment 6th November 2024
  • A postcard from the day of an election – capturing a political-constitutional moment 5th November 2024
  • “…as a matter of law, the house is haunted” – a quick Hallowe’en post about law and lore 31st October 2024
  • Prisons and prisons-of-the-mind – how the biggest barrier to prisons reform is public opinion 28th October 2024
  • A blow against the “alternative remedies” excuse: the UK Supreme Court makes it far harder for regulators to avoid performing their public law duties 22nd October 2024
  • What explains the timing and manner of the Chagos Islands sovereignty deal? 20th October 2024
  • Happy birthday, Supreme Court: the fifteenth anniversary of the United Kingdom’s highest court 1st October 2024
  • Words on the screen – the rise and (relative) fall of text-based social media: why journalists and lawyers on social media may not feel so special again 30th September 2024
  • Political accountability vs policy accountability: how our system of politics and government is geared to avoid or evade accountability for policy 24th September 2024
  • On writing – and not writing – about miscarriages of justice 23rd September 2024
  • Miscarriages of Justice: the Oliver Campbell case 21st September 2024
  • How Taylor Swift’s endorsement of Harris and Walz is a masterpiece of persuasive prose: a songwriter’s practical lesson in written advocacy 11th September 2024
  • Supporting Donald Trump is too much for Richard Cheney 7th September 2024
  • A miscarriage of justice is normally a systems failure, and not because of any conspiracy – the cock-up theory usually explains when things go wrong 30th August 2024
  • Update – what is coming up. 29th August 2024
  • Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness 21st August 2024
  • Lucy Letby and miscarriages of justice: some words of caution on why we should always be alert to the possibilities of miscarriages of justice 19th August 2024
  • This week’s skirmish between the European Commission and X 17th August 2024
  • What Elon Musk perhaps gets wrong about civil wars being ‘inevitable’ – It is in the nature of civil wars that they are not often predictable 7th August 2024
  • How the criminal justice system deals with a riot 5th August 2024
  • The Lucy Letby case: some thoughts and observations: what should happen when a defence does not put in their own expert evidence (for good reason or bad)? 26th July 2024
  • And out the other side? The possible return of serious people doing serious things in law and policy 10th July 2024
  • What if a parliamentary candidate did not exist? The latest odd constitutional law question which nobody has really thought of asking before 9th July 2024
  • The task before James Timpson: the significance of this welcome appointment – and two of the obstacles that he needs to overcome 8th July 2024
  • How the Met police may be erring in its political insider betting investigation – and why we should be wary of extending “misconduct of public office” to parliamentary matters, even in nod-along cases 28th June 2024
  • What you need to know about commercial regulation, in the sports sector and elsewhere – for there is compliance and there is “compliance” 25th June 2024
  • Seven changes for a better constitution? Some interesting proposals from some good people. 24th June 2024
  • The wrong gong 22nd June 2024
  • The public service of an “Enemy of the People” 22nd June 2024
  • Of majorities and “super-majorities” 21st June 2024
  • The strange omission in the Conservative manifesto: why is there no commitment to repeal the Human Rights Act? 12th June 2024
  • The predicted governing party implosion in historical and constitutional context 11th June 2024
  • Donald Trump is convicted – but it is now the judicial system that may need a good defence strategy 1st June 2024
  • The unwelcome weaponisation of police complaints as part of ordinary politics 31st May 2024
  • Thoughts on the calling of a general election – and on whether our constitutional excitements are coming to an end 29th May 2024
  • Another inquiry report, another massive public policy failure revealed 21st May 2024
  • On how regulating the media is hard – if not impossible – and on why reviving the Leveson Inquiry may not be the best basis for seeing what regulations are now needed 4th May 2024
  • Trump’s case – a view from an English legal perspective 24th April 2024
  • Law and lore, and state failure – the quiet collapse of the county court system in England and Wales 22nd April 2024
  • How the civil justice system forced Hugh Grant to settle – and why an alternative to that system is difficult to conceive 17th April 2024
  • Unpacking the remarkable witness statement of Johnny Mercer – a closer look at the extraordinary evidence put before the Afghan war crimes tribunal 25th March 2024
  • The curious incident of the Afghanistan war crimes statutory inquiry being set up 21st March 2024
  • A close look at the Donelan libel settlement: how did a minister make her department feel exposed to expensive legal liability? 8th March 2024
  • A close look at the law and policy of holding a Northern Ireland border poll – and how the law may shape what will be an essentially political decision 10th February 2024
  • How the government is seeking to change the law on Rwanda so as to disregard the facts 30th January 2024
  • How the next general election in the United Kingdom is now less than a year away 29th January 2024
  • Could the Post Office sue its own former directors and advisers regarding the Horizon scandal? 16th January 2024
  • How the legal system made it so easy for the Post Office to destroy the lives of the sub-postmasters and sub-postmistresses – and how the legal system then made it so hard for them to obtain justice 12th January 2024
  • The coming year: how the parameters of the constitution will shape the politics of 2024 1st January 2024
  • The coming constitutional excitements in the United States 31st December 2023
  • What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers 15th December 2023
  • A role-reversal? – a footnote to yesterday’s post 1st December 2023
  • The three elements of the Rwanda judgment that show how the United Kingdom government is now boxed in 30th November 2023
  • On yesterday’s Supreme Court judgment on the Rwanda policy 16th November 2023
  • The courts have already deflated the Rwanda policy, regardless of the Supreme Court judgment next Wednesday 10th November 2023
  • The extraordinary newspaper column of the Home Secretary – and its implications 9th November 2023
  • Drafts of history – how the Covid Inquiry, like the Leveson Inquiry, is securing evidence for historians that would otherwise be lost 1st November 2023
  • Proportionality is an incomplete legal concept 25th October 2023
  • Commissioner Breton writes a letter: a post in praise of the one-page formal document 11th October 2023
  • “Computer says guilty” – an introduction to the evidential presumption that computers are operating correctly 30th September 2023
  • COMING UP 23rd September 2023
  • Whatever happened to ‘the best-governed city in the world’? – some footnotes to the article at Prospect on the Birmingham city insolvency 9th September 2023
  • One year on from one thing, sixteen months on from another thing… 8th September 2023
  • What is a section 114 Notice? 7th September 2023
  • Constitutionalism vs constitutionalism – how liberal constitutionalists sometimes misunderstand illiberal constitutionalism 24th August 2023
  • Performative justice and coercion: thinking about coercing convicted defendants to hear their sentences 21st August 2023
  • Of impeachments and indictments – how many of the criminal indictments against Trump are a function of the failure of the impeachment process 15th August 2023
  • A note of caution for those clapping and cheering at the latest indictment of Donald Trump 8th August 2023
  • Witch-hunt (noun) 2nd August 2023

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Category: Constitutional and Legal History

The president who believes himself a king

23rd February 2025

A telling joke told by the president of the United States

*

During the last week the president of the United States compared himself to a king.

Of course, it was intended to be a joke – not in the sense of being funny, but in the sense of saying something without any adverse consequences.

But what struck me when he said it is that this is exactly sees power: that all power – executive, legislative, judicial – flows from him, and is ultimately exercisable by him. He wants to block laws and ignore court orders at will.

As such he does see himself as an absolute ruler.

In the United Kingdom – or at least in England – the theory is that while all power flows from the Crown, it is institutionalised so that the legislature legislates (as the “Crown-in-Parliament”) and the courts adjudicate (including in the Royal Courts of Justice).

But.

The “founding fathers” who devised the United States constitution rejected this approach – for them, the executive, legislature, judiciary each derived their powers separately from the constitution document itself – and not from the executive.

Trump’s approach is a flat contradiction to this codified constitutional arrangement.

I have written more about this over at Prospect – please click and read here.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 23rd February 2025Categories Constitutional and Legal History, Constitutional Law, United Kingdom Law and Policy, United States Law and Policy8 Comments on The president who believes himself a king

Looking critically at Trump’s flurry of Executive Orders: why we should watch what is done, and not to be distracted by what is said

21st January 2025

Around Westminster, the most useful guides to the nature of modern politics may not be the journalists and commentators, still less the ‘think tanks’ with their portentous names and solemn but flimsy ‘reports’.

They are perhaps instead the con-artist conjurers on Westminster Bridge – whose activities are detailed in this fine piece.

For it is these lowly tricksters that remind us that we should watch what is done, and not to be distracted by anything else.

*

The Conjurer, painted by Hieronymus Bosch

*

In the United States and the United Kingdom there is currently a lot of noise and a lot of misdirection.

As a famous chess player once observed:

“The point of modern propaganda isn’t only to misinform or push an agenda. It is to exhaust your critical thinking, to annihilate truth.”

*

The constant noise and endless misdirections are indeed exhausting.

By the time any of the noise and misdirections are translated into action (or inaction), you are tired to notice and others will be too tired to care.

We will be onto the next outrage, and then the next, and the next.

The hard thing is to separate out what is done (and not done) from what is said.

*

In the United States there has been a flurry of Executive Orders from the newly inaugurated President Donald Trump.

This sounds very impressive, and it sounds very scary.

But, an Executive Order is not a precise thing – it is a generic term to describe a range of documents that can come from the President.

As this US academic explains:

Some of these Executive Orders will be instruments provided for and envisaged by pre-exisiting enacted legislation: and these will usually have direct legal effect.

Others will have no legal framework and have no legal basis for having any effect.

Many will range between these two extremes.

All will be ‘Executive Orders’ put forward and signed by the President – but pretty much that is all they will have in common.

And according to another US observer, many of these Executive orders are not even of serviceable quality:

This is not surprising: competent legal drafting is not easy, and many of these “Executive Orders” are from pressure groups and professional antagonisers.

Like the Truss legal letter recently examined on this blog, what you have here are media-political devices disguised in the form of legal documents.

But it is a mask, and what we are seeing is essentially a masquerade.

*

This is not to say that some – maybe many – of these Executive Orders are not going to have adverse effects for somebody – especially in the short term.

Indeed, given the many partisan conservative judges now on the federal bench, there will be energetic judicial exertions to give effect to otherwise shoddy Executive Orders.

But what it does mean is that we should be careful not to accept everything at face value.

For a flurry of Executive Orders may be little different from a flurry of Press Releases.

And we should be mindful that we are dealing with con-artist conjurers.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 21st January 202521st January 2025Categories Constitutional and Legal History, Constitutionalism, United States Law and Policy9 Comments on Looking critically at Trump’s flurry of Executive Orders: why we should watch what is done, and not to be distracted by what is said

This week’s skirmish between the European Commission and X

17th August 2024
Law and politics are ultimately about how power is allocated and exercised within a given complex society. In particular, law and politics are about how such power is legitimised and about how it is checked and balanced.

And from time to time you will have visible contests between those with different types of power. The job of law and politics is then to regulate such contests so as to ensure that tensions do not harden into the contradictions that undermine the health of a polity.

*

These contests of power, when they happen, are fascinating.

Over at Prospect I have written a post about one such contest: the European Commission v X.

The latter has considerable media power: so much so that the content of its platform can often have a considerable real-world impact.

But the former also has considerable power – in the formulation of the laws that apply to the platform in the European Union and in the application of those laws in particular circumstances.

It is quite the stand-off.

*

When the European Commissioner responsible for the Single Market tweeted a letter last week, it reminded me of an earlier stand-off.

It evoked the stand-off in 1930-31 between the then government of the United Kingdom and the then popular press over tariff reform and imperial preference (the Brexit issue of its day).

That was a stand-off which, at least in the short-term, the government won.

(Tariffs were introduced later in the 1930s, though not directly because of media pressure.)

*

Often these tensions are hidden and managed out of public view, and so it is always interesting – and instructive – when they are done in public.

Something is up.

**

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 17th August 2024Categories Blogging and bloggers, Constitutional and Legal History, Constitutional Law, Constitutionalism, European Union Law and Policy, International law, Media law, Regulatory law, social media, United Kingdom Law and Policy8 Comments on This week’s skirmish between the European Commission and X

The predicted governing party implosion in historical and constitutional context

11th June 2024

From time to time the party now known as the Conservative and Unionist party has done badly – very badly.

*

In 1828-32, the old Tory collapsed as what some historians call the British “ancien regime” itself collapsed with Roman Catholic emancipation and the Reform Act of 1832.

Relatively moderate Tories, “Canningites” like Melbourne and Palmerston, went off to join with the Whigs.

But the Tories were back in government by 1834, and rebranded as by Peel as “Conservatives” they had an overall majority by 1841.

*

In 1845-46, the Conservatives collapsed as the Corn Laws were repealed (the “Brexit” of its day.

Relatively moderate Conservatives, “Peelites” like Gladstone, went off to ally themselves with the Whigs.

But the Conservatives were back in government by 1852, and after reinvention by Disraeli they had an overall majority by 1874.

*

In 1905-06, the Conservatives – now allied with the Liberal Unionists – collapsed, in good part because of splits on tariff reform and imperial preference (the “Brexit” of its day).

Relatively moderate Conservatives, “Free Traders” such as the young Winston Churchill, went off to join the Liberals.

But the Conservatives (who formally fused in 1912 with the Liberal Unionists to create the current Conservative and Unionist party) were back in government by 1916, and (posing as a national coalition) they had an overall majority by 1918.

*

And in 1997, the Conservatives lost badly, in good part to splits on the European issue following Maastricht and Black Wednesday (the “Brexit” of its day.

There were a number of defections of (now forgotten) Conservative politicians to the Labour and Liberal Democrat parties.

But the Conservatives were back in office by 2010, and they had an overall majority by 2015.

*

The four examples above have common themes – including the facts that the Tory-Unionist-Conservatives-National Coalition managed to get back into office again, before winning an overall majority at a later election.

There is also the example of 1945, where a heavy Conservative defeat was followed by taking office again by 1951.

*

But there is one theme which is different, and which may make what happens after the imminent general election in 2024 different.

After each of the defeats referred to above, the defeated rump of the party pretty much remained. It did not go off to create a new party to their right.

And so as the pendulum of politics in time moved away from those who had defeated that rump, they were able to take advantage.

Of course, they also often took the time and effort to rebrand or reinvent themselves. And they were able to take advantage of working with others, such as the Liberal Unionists after 1886 and the other parties in national coalitions from 1918 to 1935.

But they never had to deal with a party trying to take their place as the main party opposing the more left-wing party.

*

Here an analogy may be with the Liberals, who last won an overall majority in 1906 – and were then after 1906 outpaced by the rising Labour party.

All because the Tory-Unionist-Conservatives have come back each time before, it does not mean that they necessarily will do again.

*

The “first past the post” electoral system tends to favour established parties with their established brand names – and tribal loyalty and voters’ muscle memory will tend to do the rest.

As such, the Conservatives have an advantage over the Reform party now trying to outpace it to the right.

It may well be that the Reform party do no better than flash-in-the-pan(ic) parties like the “New Party” of 1931-32 and the SDP of 1981-88.

But when the electoral system finally shifts against a party, it shifts – as the Liberals found out after 1906.

And until and unless there is fundamental electoral reform, the Conservatives not only face heavy defeat (which they have survived many times before) but also a spirited attempt by Reform to be their replacement.

*

So, if as widely predicted there is a heavy defeat for the Conservatives on 4 July 2024, will they soon bounce back as they (and their previous incarnations) did after 1832, 1846, 1906, 1945 and 1997?

Or will this be their equivalent to what happened to the Liberals in 1906?

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 11th June 202411th June 2024Categories Constitutional and Legal History, United Kingdom Law and Policy22 Comments on The predicted governing party implosion in historical and constitutional context

Why the Northern Irish Border Poll of 1973 was both unimportant and profoundly important

19th July 2023

(This post is a long excerpt from a fuller post at the Empty City substack for paying subscribers.)

*

This post is about the border poll that took place in Northern Ireland on 8 March 1973.

The choices in that poll were:

“Do you want Northern Ireland to remain part of the United Kingdom?

“Do you want Northern Ireland to be joined with the Republic of Ireland outside the United Kingdom?”

(Pic source.)

*

By 591,820 votes to 6,423 votes, on a 56% turnout, the result of the poll was in favour of Northern Ireland remaining part of the United Kingdom.

This result was not a surprise, given the electorate of Northern Ireland at the time.

And the low turnout was, in part, caused by a boycott of the exercise by the nationalist community.

*

This 1973 poll – or plebiscite or referendum, for the terminology varied – is not that well-known. Many histories of the period do not mention it.

When it is mentioned the poll is often regarded as a pointless exercise which did nothing to satisfy the unionists, and which certainly had no legitimacy for the nationalists.

And even at the time the poll was regarded as being fairly unimportant, almost trivial.

The poll was imposed by the United Kingdom government during a political and security crisis; the Northern Irish unionists had not asked for any such poll to take place; the nationalists did not campaign or vote; and, in any case, the result was a conclusion foregone.

The poll also had little-to-no direct impact on events: it did not seem to change anything that otherwise would have happened either in 1973 or the years that followed.

Soon the poll was pretty much forgotten about.

And none of the subsequent periodic polls in Northern Ireland which were then envisaged by the United Kingdom government took place.

As such, the poll can be seen as a minor detail, almost a footnote, to the story of Northern Ireland during “the Troubles”.

The 1973 poll was unimportant, at least in any direct sense.

*

But.

But the poll can perhaps now be seen as profoundly important in its implications and consequences, for two reasons.

*

First, this poll was the first referendum under a dedicated Act of the parliament of the United Kingdom, and this meant that it was far easier for the other referendums that followed.

Before 1973, there had been local polls by local councils on local matters in the United Kingdom, held under general and permissive Acts of Parliament that enabled local councils to hold such local polls on local matters.

But this border poll was different – radically different.

It was the first time a matter which would normally be for the parliament in Westminster (or the then Northern Irish parliament at Stormont) was put to the people directly, despite heady notions of parliamentary supremacy or sovereignty, in any or all of the four constituent parts of the United Kingdom.

As my Substack has previously set out, senior British politicians since late Victorian times had sometimes called for referendums, usually to help them out of knotty problems.

But this was the first referendum to actually take place on a matter usually reserved for parliament.

As such, this was the first actual exception to the hitherto hard doctrine of parliamentary supremacy.

Other exceptions would soon follow.

Following this first dedicated referendum there was then the referendum in 1975 on the United Kingdom remaining part of the then European Communities, and then referendums in Scotland and Wales on devolution in 1979.

And those referendums, in turn, meant that by the late 1990s referendums were seen as a valid means for dealing with renewed calls for devolution.

In 1998 a referendum was seen as the obvious means for endorsing the Good Friday Agreement.

Also, from the early 1990s, referendums were frequently demanded in respect of the European Union, and one was finally granted in 2016.

There was even a referendum on electoral reform.

Referendums went from being a constitutional exception to being, at least for certain matters, a constitutional rule.

Yet without the Border Poll of 1973 the referendums of 1975 and 1979 and many of those thereafter may never have taken place.

Perhaps the vote on the Good Friday Agreement would have still occurred, but even then the precedent of 1973 was perhaps instrumental in it being recognised that it was for the people of Northern Ireland (and not their politicians) to make this key decision.

After 1973 the old doctrine of parliamentary supremacy became undermined in reality, if not in strict constitutional theory.

There were certain matters which it became parliament should refer to the people.

*

Second, not only was the border poll an exception to one fundamental principle, it was also an important practical assertion of what was to become another fundamental principle.

For the border poll of 1973 was the first application of what is now a fundamental principle which can be stated as follows: that it is for the people of Northern Ireland to decide whether Northern Ireland is to become part of a unified island of Ireland or to remain part of the United Kingdom.

And note the reference here to “the people” – and thereby the decision is not for the politicians of Northern Ireland or any representative body, such as a Northern Ireland parliament.

This is significant.

The principle – which was first canvassed by the United Kingdom government in the late 1960s – informed and shaped what has happened in Northern Ireland since 1973, via the Good Friday Agreement, to the present day.

And it is this fundamental principle that explains why it is probable there will be a further border poll in Northern Ireland in the next few years.

*

The 1973 Border Poll, however, came about almost by accident, as one of many novel improvisations in a difficult political situation.

Here we need to go back to the United Kingdom’s Ireland Act of 1949 that provided that in no event would Northern Ireland cease to be part of the United Kingdom without the consent of the parliament of Northern Ireland.

It was a matter for the parliament of Northern Ireland, and not the Northern Irish people directly.

See section 1(2):

*

But by 1973 there was no parliament of Northern Ireland.

The parliament of Northern Ireland had been suspended.

And so when the government of the United Kingdom, facing the escalation of the Troubles, decided that there should be some affirmation of Northern Ireland’s position in the United Kingdom a decision was made that there should be a direct poll instead.

What had been, under the 1949 Act, a matter for the elected parliament of Northern Ireland was, at a stroke, made a matter for the people of Northern Ireland directly.

The 1949 Act had not said the consent of the people was needed or even should ever be sought on the place of Northern Ireland in the United Kingdom. It was not an issue for any popular vote.

But in 1973 it was made a matter for the people of Northern Ireland directly, and it has been ever since.

See section 1 of this 1973 Act, which followed the border poll:

And then section 1 of the 1998 Act that gave effect to the Good Friday Agreement:

Never again would an Act of Parliament say the place of Northern Ireland in the United Kingdom was a decision to be taken on behalf of the people of Northern Ireland.

*

So in terms of the immediate politics of 1973 the border poll may not have been important, but the use of a referendum for such a question was profound in its implications and consequences.

And as we approach a probable new border poll in Northern Ireland, it is a story that is perhaps worth knowing.

Over at my Empty City Substack I have posted a fuller account of the 1973 border poll for paying subscribers.

**

The fuller article has also been posted at my Patreon.

Any PayPal subscribers wanting access to the fuller article should leave a message below marked private with their email address.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 19th July 2023Categories Constitutional and Legal History, Constitutional Law, Democracy, Elections and Voting, Island of Ireland11 Comments on Why the Northern Irish Border Poll of 1973 was both unimportant and profoundly important

A modest proposal for helping the Prime Minister “keep on top of government” and “to push priorities”

3rd July 2023

Over on Twitter, the estimable Dr Cath Haddon is live-tweeting a talk from a former cabinet minister to the Institute of Government:

Here is an idea for a Prime Minister to have something to help him or her keep on top of what is going on in government and to push priorities.

The Prime Minister should form a committee of, say, about twenty-two individuals, each responsible for a specific government department or public function.

Those on this committee should report directly to the Prime Minister.

And the Prime Minister should be able to appoint and replace members of this committee as he or she chooses.

This committee should meet at least a couple of times a week – and this meeting should be at Downing Street chaired by the Prime Minister.

There can also be sub-committees dealing with matters where more than one government department is concerned – and these sub-committees can also be chaired by the Prime Minister or their designate.

So as to ensure that priorities are pushed – and as politics should be the language of priorities as one politician once said – these appointees should be politicians not officials.

And appointing members of parliament to this committee would also mean that the Prime Minister would have a useful direct line to what is said about the departments in parliament.

Meetings of this committee should also be attended by the head of the civil service, so that he or she can be part of the discussions and to provide advice and practical insight.

The deliberations should be confidential so that discussions can be frank and not leaked.

And there should be collective responsibility for those on the committee, so that there is a single overall direction to the course of the government.

Those on this committee should also be paid a substantial amount in addition to their parliamentary salary so as to recognise the additional work and to attract the brightest and best.

Such a model would, at a stroke, keep a Prime Minister on top of what is going on in government and for priorities to be pushed across government.

And this is the important thing…

…if a Prime Minister cannot effectively use such a committee to keep on top of what is going on in government and to push priorities, then no “Prime Minister’s Department” is going to be of any greater help.

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The only thing left is what to call this committee.

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Pic source.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 3rd July 20233rd July 2023Categories Constitutional and Legal History, Constitutional Law, Legislation and Law-Making, United Kingdom Law and Policy34 Comments on A modest proposal for helping the Prime Minister “keep on top of government” and “to push priorities”

Why the United Kingdom government cannot leave the ECHR without either breaching or re-negotiating the Good Friday Agreement

1st July 2023

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The overlooked obstacle to the United Kingdom withdrawing from the ECHR

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From time to time the demand comes from a government minister, or from one of their political and media supporters, for the United Kingdom to leave the European Convention of Human Rights.

This short blogpost sets out the most obvious obstacle for the government in doing this.

The obstacle – if that is the correct word – is the Good Friday Agreement.

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That thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.

[…]

“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including:  […]

“(b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission

[…]

“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”

And so on.

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The ECHR is not just mentioned in passing in a recital.

Instead the ECHR is integral to the Good Friday Agreement.

Rights under the ECHR that can be relied upon in Northern Ireland are a fundamental part of the agreement.

It was important to Ireland – and to the nationalist community – that there were rights beyond the reach of Westminster and Whitehall (and Stormont) that could be enforced directly against the state of the United Kingdom, including against the police and security services.

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When this obstacle is pointed out, sometimes the response is “Aha! Why not just have the ECHR applicable in Northern Ireland?”

Of course, there is nothing in the Good Friday Agreement which expressly requires rights under the ECHR to be directly enforceable elsewhere in the United Kingdom.

But.

Article 1 of the ECHR provides:

It may thereby not be open to the United Kingdom to be a party to the ECHR and pick-and-choose who within its jurisdiction can have the benefit of the rights.

This would be in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.

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Perhaps the government of the United Kingdom could seek to renegotiate the Good Friday Agreement?

This would mean Ireland agreeing that those – especially nationalists – in Northern Ireland should have their existing legal rights against the United Kingdom state removed.

It would also mean Ireland agreeing that it would not be able to take the United Kingdom to court in Strasbourg.

And it would also mean – in practice – the United States and the nationalist community agreeing that legal rights and protections are removed.

This is not at all realistic.

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And the difficulty cannot be resolved by simply copying and pasting the Convention rights into a domestic statute for Northern Ireland.

For unless the rights are as constructed and interpreted by the Strasbourg court, and unless a disappointed party can petition the Strasbourg court directly, they are not “convention rights” – even if identically worded.

(This is partly why even Dominic Raab’s “Bill of Rights” that was to repeal the Human Rights Act had the convention rights in a schedule and a duty on public authorities to comply with those rights.)

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Part of the difficulty of Brexit was because some did not know or did not care about the particular situation of Northern Ireland. Some also pretended it was not an issue, but as we now know it needed special care and attention – and it still has not been fully resolved.

Similarly those who believe just leaving the ECHR would be easy may again be overlooking the Irish and Northern Irish dimensions.

And unless the Good Friday Agreement is re-negotiated, the United Kingdom leaving the ECHR would place the United Kingdom in breach in Good Friday Agreement.

Well, at least as long as Northern Ireland remains part of the United Kingdom.

And that would be another story.

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This post is partly drawn from this earlier blogpost.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 1st July 2023Categories Brexit, Constitutional and Legal History, Constitutional Law, Human Rights and Civil Liberties, Island of Ireland, Police and Policing, Policy and Policy-Making, United Kingdom Law and Policy, United States Law and Policy7 Comments on Why the United Kingdom government cannot leave the ECHR without either breaching or re-negotiating the Good Friday Agreement

Is it, at last, time to say “good bye” to Thoburn and the idea of “constitutional statutes”?

 9th February 2023

Oh dear old Thoburn, what shall be done with you?

Thoburn, the mainstay of thousands of constitutional law essays and hundreds of learned articles, does yesterday’s Supreme Court decision mean you are now no more?

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Thoburn is the 2002 “metric martyrs” case which introduced into the then quiet, sedate world of constitutional law the exciting concept of “constitutional statutes”.

Until then all Acts of Parliament were regarded as being equal, none of them any more entrenched – enshrined – than any other.

But in Thoburn the judge said, in effect, that there was a class of super-duper statutes known as “constitutional statutes” and these statutes had super-duper qualities not available to more mundane everyday statutes.

Incredible, if true.

And so Thoburn became the recent constitutional law case any student or informed pundit had to have an opinion about.

But yesterday’s Supreme Court decision on the Northern Irish Protocol may mean the dictum in Thoburn are no longer to be taken seriously.

What will law students and pundits do?

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To understand what happened with the Thoburn case we have to go back to the Victorian doctrine of the supremacy of parliament.

This doctrine holds that no statute passed by the Crown-in-Parliament can be gainsaid by any court.

But in two case in the early 1930s about the Acquisition of Land (Assessment of Compensation) Act 1919 and the Housing Act 1925, the courts were presented with a situation where two statutes contradicted each other.

How should the courts deal with this situation?

The clever idea the courts came up with was “implied repeal” – and so the fiction adopted was that parliament in passing the later legislation knew about the earlier legislation, and so the (presumed) intent of parliament was to repeal the earlier legislation.

But as this repeal was not explicit in the later legislation, it would have to be an implicit repeal.

And this is how the interwar courts managed to disapply a piece of primary legislation, notwithstanding the heady doctrine of the supremacy of parliament.

(Of course, if no Act of parliament can actually be gainsaid by a court, then the courts should have just refused to choose between the two contradictory statutes and return the matter to Parliament to sort out – but the fig-leaf of the “intent” of parliament meant the courts could sort out the legislative mess parliament had created.)

And the legal rule from these case was that the later statute trumps – that is, implicitly repeals – the earlier statute when the two contradict.

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But in 2002 the court was faced with another seemingly awkward situation.

It was submitted in that case that the Weights and Measures Act 1985 somehow implicitly repealed the earlier European Communities Act 1973.

On the merits of the case, the court found that this was not the position.

But in a dictum – which was not about the point on which the case turned – Lord Justice Laws (and please none of the usual jokes about nominative determinism) went on a judicial frolic and speculated about implied repeal.

Could a later Act of Parliament really implicitly repeal the European Communities Act 1973, which – in turn – was the (then) basis for the laws of the European Union having effect in the United Kingdom?

On the basis of the 1930s cases then this would have to be the position, as the later statute trumps the earlier statute.

But.

As we now know, repeal of the European Communities Act 1973 would be a very complicated and far-reaching thing.

And so Lord Justice Laws posited a new category of statutes which would be immune from any implied repeal.

If there were any contradictions with an earlier “constitutional statute” then it would be the later statute that would be repealed, not the earlier one.

His dictum was as follows (which I have broke out into one-sentence paragraphs):

We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.

The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.

(a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b).

The special status of constitutional statutes follows the special status of constitutional rights.

Examples are the [sic] Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998.

The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law.

It may be there has never been a statute having such profound effects on so many dimensions of our daily lives.

The ECA is, by force of the common law, a constitutional statute.

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This was exhilarating, provocative stuff.

And it was utter flapdoodle.

There was no basis for positing such “constitutional statutes” – either then or now.

They were invented just to get the courts out of the potentially tricky situation which the judges’ contrived solution to the problems in the 1930s had got themselves into.

The notion of “implied repeal” was now a reversible switch – and it was to be the judges who decided (and not parliament) whether it would be the earlier or the later legislation that would be “implicitly repealed” by the simple expedient of the judge perhaps dubbing one or the other of the Acts of Parliament a “constitutional statute”.

It was all rather daft, but you will see why it was like catnip to those with an interest in constitutional law.

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Anyway, the Laws dictum was relied on by the applicants in the recent Allister litigation on the legality of the Northern Irish Protocol, which eventually reached the Supreme Court.

The Supreme Court decision in that case is fascinating and it warrants a post by itself, especially on respect of the developing jurisprudence of the court on devolution.

But the Supreme Court was unimpressed by the Thoburn point.

The court described the submission (again broken up into one-sentence paragraphs):

On the hearing of this appeal, the appellants submitted that the Acts of Union were constitutional statutes so that the rights in the trade limb of article VI of His Majesty’s subjects of Northern Ireland being on the same footing in respect of trade as His Majesty’s subjects of Great Britain, could not be subject to repeal or to subjugation, modification, or suspension absent express or specific words in a later statute.

In support of that submission, the appellants relied on a line of authorities starting with Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151 for the proposition that whilst ordinary statutes may be impliedly repealed constitutional statutes may not.

At para 63 of Thoburn, Laws LJ suggested that the repeal of a constitutional statute or the abrogation of a fundamental right could only be effected by a later statute by:

“express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible.”

The appellants submitted that the Acts of Union are constitutional Acts and that the rights to equal footing as to trade were fundamental rights so that there was no scope for implied repeal and by analogy there was no scope for implied subjugation, modification, or suspension.

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You will see that the Thoburn point has now been expanded beyond implied repeal and that “constitutional statutes” have various other super-duper legal protections.

The court held (again broken up into one-sentence paragraphs, and with my two comments interposed):

The debate as to whether article VI created fundamental rights in relation to trade, whether the Acts of Union are statutes of a constitutional character, whether the 2018 and 2020 Acts are also statutes of a constitutional character, and as to the correct interpretative approach when considering such statutes or any fundamental rights, is academic.

“Academic.”

Even if it is engaged in this case, the interpretative presumption that Parliament does not intend to violate fundamental rights cannot override the clearly expressed will of Parliament.

“Even if”

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Allister is not about implied repeal, so strictly speaking the Laws dictum in Thoburn may be said to not be applicable.

But the notion of “constitutional statutes” is plainly not taken seriously by this unanimous Supreme Court in an important devolution case engaging what Laws would have called many “constitutional statutes” , with a panel consisting of justices from Northern Ireland, Scotland, and Wales, as well as the court’s leading public law justice, Lord Sales.

For the Supreme Court, the content of the Acts of Union have no special entrenched legal status, and they can be amended, and so on, just as any other Act of Parliament.

The question of what would happen with a direct contradiction, as in the early 1930s has been sidestepped.

But the expedient of “constitutional statutes” as suggested by Laws in Thoburn seems to have been put back in its judicial box.

Or has it?

No doubt there will now be thousands more constitutional law essays, and hundreds more learned articles, to tell us whether the dictum in Thoburn is no more.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

Posted on 9th February 20239th February 2023Categories Constitutional and Legal History, Constitutional Law, Courts and Politics, Courts and the administration of justice, Human Rights and Civil Liberties, Island of Ireland, Legal Words and Phrases, Legislation and Law-Making, The Crown, The Union, Northern Ireland, Scotland, Wales, United Kingdom Law and Policy28 Comments on Is it, at last, time to say “good bye” to Thoburn and the idea of “constitutional statutes”?

New Substack Essay: The 1610 case of Dr Bonham, and the question of whether parliament is really sovereign

 

22nd January 2023

The new essay at my Substack is up.

The essay is on the 1610 case of Dr Bonham, and the question of whether parliament is really sovereign:

These essays on legal history or law/lore are for paid subscribers, and they are additional to my weekday free-to-read topical commentary here on the law and policy blog.

Previous essays in this series are:

Malone (1979) – perhaps the most significant constitutional case of the last 50 years

Wednesbury (1948) – the origin of the modern principle of legal unreasonableness

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These essays are cross-posted on Patreon for my Patreon supporters.

Anyone who made a Paypal donation to this blog in 2022, as well as Patreon supporters, can be given a one-year free complimentary subscription – just leave a message marked “PRIVATE” below.

It is important that nobody pays ‘twice’ for my content.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

Posted on 22nd January 2023Categories Constitutional and Legal History, Constitutional Law1 Comment on New Substack Essay: The 1610 case of Dr Bonham, and the question of whether parliament is really sovereign

ESSAY “A decision so unreasonable that no reasonable authority could have come to it”

15th January 2023

This is my essay this week at Substack.

The Wednesbury case of 1948 provides one of the most famous and influential judgments in English legal history.

Because of the case, the phrase “Wednesbury unreasonableness” has become well-known legal shorthand for decisions and rules made by public bodies that are so unreasonable that no reasonable public body could have made them.

Nearly two-and-a-half thousand cases on the BAILII public database use the phrase “Wednesbury unreasonable”.

Indeed, the one thing that many people outside the West Midlands know about Wednesbury is that it associated with this extreme legal standard.

But in the judgment, the town’s corporation was found not to be acting unreasonably – at least in the legal sense.

And the case was not even decided on the basis of reasonableness, but on the basis of normal statutory construction.

So how did the little town of Wednesbury get such legal infamy?

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To read the rest, you can go over to my Substack and subscribe.

Every week I will write an essay on an aspect of legal history, or on the relationship between law and lore/popular culture, for those kind enough to subscribe to my Substack.  The essay will be posted on Friday/Saturday/Sunday.  I will even sometime use multi-sentence paragraphs, like this one.

Last week’s essay was on the Malone case of 1979, which I reckon to be the most significant constitutional case of the last fifty years.

The weekly essay is also cross-posted on my Patreon page for Patreon supporters.

For those of you who have kindly donated through Paypal in 2022, please leave a comment marked “Private” below, and I can give you a complementary one year subscription to Substack.

It is important that nobody pays “twice” for my content.

Posted on 15th January 2023Categories Competition law, Constitutional and Legal History, United Kingdom Law and Policy2 Comments on ESSAY “A decision so unreasonable that no reasonable authority could have come to it”

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