Time for a peer review – why focusing on just fixing the problem of hereditary peers would not be enough

22nd June 2021

The Sunday Times this weekend did a good piece of journalism on the hereditary peers in the house of lords.

Who could possibly disagree?

Well – certainly not this blog, in principle.

Removal of the hereditary element in the house of lords is one of many ‘micro’ reforms of the constitution of the United Kingdom which should be done – regardless of the interminable ‘debate’ on the merits of a codified constitution.

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Yet.

Here are some things to think about as you nod-along.

There are other (perhaps even worse) problems with the composition of the house of lords: the power of patronage of party leaders – especially the prime minister, the rights of bishops of just one denomination of one church to have twenty-six votes, the number of life peers who do not take any active role but can be summoned to vote, and so on.

And contrary to the impression given by the headline of that piece: ninety of the ninety-two hereditary peers sitting in the house of lords do not have automatic seats – they are elected by the hereditary peers generally.

This means, somewhat paradoxically, they are the only members of the house of lords that are there by means of any sort of electoral process.

They are also free from any allegiance to any party manager or any debt arising from an act of patronage.

In other words: they are part of the legislature outside the control of the government or party leaders.

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But.

Whatever the case that can be made for hereditary peers in the house of lords, they still need to go – and sooner rather than later.

Some constitutional abominations are too awful to be tolerated.

And removing the hereditary peers would also make the house of lords more, shall we say, ‘legitimate’ in its constitutional role.

(And can we please get rid of all the mock-chivalric-pseudo-feudal-medieval titles while we are at it – if you really want to be a lord or lady of something, join a historical enactment society.)

All that said: there should not be the removal of one of the genuinely independent features of the house of lords without regard to the overall balance.

There is little to be gained from clapping and cheering the removal of the hereditary peers if the effect would be to tilt the balance of the house of the lords towards more governmental control.

For, as the constitution of the United Kingdom currently stands, the house of lords is the most effective check and balance to a house of commons dominated by the government.

The house of lords cannot block any legislation – and nor should it, as it does not have any democratic basis – but it can force the house of commons to think again and more carefully about its legislative proposals.

And often the reasoned amendments of the house of lords are accepted by the house of commons – and, indeed, often the house of lords amendments can provide convenient cover to ministers who eventually realise that the initial proposals were unsound.

Given that the most important constitutional function of the house of lords is that of a check and a balance – rather than to be a chamber with a rival democratic basis – then the most important quality is that it should be independent.

Stripping out one feature that provides any independence in the upper chamber should thereby be matched by other measures to maintain that independence.

That is why there should be a more general (ahem) peer review.

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And luckily, there has actually been a useful review.

The Burns report of 2017 puts forward sensible and persuasive proposals for reforming the composition of the house of lords while keeping its independent constitutional role.

The key proposals are to limit the size of the upper chamber and to convert lifetime membership (of the life peers) to a single term of fifteen years.

That report, however, did not make direct proposals for the hereditary peers and bishops.

But, in principle, there is no reason why such a reform could not also mean the removal of the hereditary and spiritual peers – as the overriding objective of a balanced upper chamber outside the domination of any government of the day would be retained.

So – yes, nod-along with the attack on the hereditary elements and, also yes, let’s get rid of them – but when the nodding-along ends, let us also make sure we have not ended up with a less independent upper house in our current constitutional arrangements.

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The Clown and the Constitution

21st March 2021

Sometimes the usual superlatives do not seem enough – ‘brilliant’, ‘excellent’, ‘outstanding’ do not give justice to a thing.

So all I can aver is that the article ‘The clown king: how Boris Johnson made it by playing the fool’ by Edward Docx is perhaps best piece of contemporary political observation and analysis I have come across for a long time.

If you have not read it, go and read it now – else the rest of this post will make little sense.

And if you have read it, go and read it again.

This is because there is no way that a summary of that article by me will be adequate.

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Everything Docx says that touches on certain law and policy issues over the last few years is true.

Brexit is indeed ‘an act of symbolism at the expense of everything else.’

The lack of seriousness about law as an illustration of the the lack of seriousness generally:  ‘the teetering unicycle of Johnsonian buffoonery – A-levels, school meals, foreign health workers and more. A country of tumbling catastrophes. Trampolining absurdities. Go to work. Don’t go to work. A country proroguing parliament illegally here, trying to break international law there.’

The dislocation between the heady claims of political language and the mundane realities of political substance: ‘we became a country in which there was only the mock heroic – a “world beating” country that would “strain every sinew” and give “cast-iron guarantees” while bungling its plans and breaking its promises. A country “ready to take off its Clark Kent spectacles” and act “as the supercharged champion” of X, Y, Z. A country on stilts – pretending that we had a test and trace system that was head and shoulders above the rest of the world.’

The nature of the campaign for Brexit and the insincerity of Boris Johnson’s role: ‘the likes of Iain Duncan Smith, David Davis, Steve Baker, Nigel Farage, Mark Francois, John Redwood, Gisela Stuart, Kate Hoey et al – were never more than a dim congregation of rude mechanicals. And what they required to win was someone who instinctively understood how to conduct a form of protracted public masque.’ 

And so on.

Docx’s depiction of the character and approach of the current prime minister is unmatched.

Falstaff, the Fool, the Clown, has indeed taken over as king.

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At the end of Docx’s article, however, he posits that there are hard challenges that cannot (easily) be avoided by the clowning prime minister:

‘The difficulty for the clown is that once truth and seriousness have been merrily shattered, they cannot be put back together and served up anew. Or, to put it another way, the buffoon who has just entertained the audience by smashing all the plates cannot now say that he proposes to use them to serve up a banquet in honour of himself becoming a wise and honest king. Everyone can see: the plates are all in pieces on the floor.’

One of these challenges is more policy than law – the many serious failures of the government United Kingdom in respect of the Covid pandemic.

Here Docx points out that Johnson is now seeking to tell a story so as to lift him out of any culpability:

‘Are we supposed to forget this legacy and “move on”? That is what Johnson is now tacitly suggesting. Like all storytellers, he knows the public remember endings, less so beginnings and seldom the middle. He did all he can, he says. He knows it’s not true, but that is what he is selling.’

Here Docx appears to be doubtful of his own plate-smashing analogy.

People may elect not to see the damage: Johnson can – and may well will – distract us by more plate-smashing: world-beating plate-crashing, no doubt.

The other challenge, however, is squarely constitutional.

And that is the future of the union.

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Docx rightly observes that there is a pending constitutional crunch: ‘the realm really is still falling apart. Johnson’s predicament could not be more starkly illuminated than by the next existential challenge he faces: to do with the very nature of the union of England, Scotland, Wales and Northern Ireland.’ 

Johnson’s predicament here affirms the truth of the old Hebrew proverb about the difference between a clever person and a wise person: a clever person can get out of situations that a wise person would not get into.

The lack of wisdom here, however, is not that just of Johnson.

The folly of the in/out referendum was that of David Cameron, and the infliction of a ‘hard Brexit’ (with the United Kingdom outside the European Union customs union and single market) was by Theresa May.

Wiser heads – who realised the precariousness and fragility of constitutional arrangements – would not have risked the future of the United Kingdom, as Cameron did, on one turn of pitch-and-toss.

Nor would they have insisted on an extreme form of Brexit in the first few months after the referendum, as May did.

Johnson was not responsible for either of those two calamitous decisions, which in turn have created what Docx rightly calls the ‘existential challenge’ of keeping the union together.

The fool may have become prime minister – but only after the two previous prime ministers had made the most foolish of decisions.

And given those foolish decisions – and their necessary implications for the position of Northern Ireland – then there is not a great deal that Johnson can do.

The clown has not so much taken over the stage: it is more that supposedly wiser rulers have left the stage to the clown alone.

And, of course, Johnson will approach the problem with his strategic dishonesty and tactical buffoonery – but, frankly, what else has he got?

The constitutional logic of the Brexit that was in place before he became prime minister will continue to unfold.

Slapping sticks is perhaps all that is left.

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All this said: never underestimate the trickster.

A clever person may be the one who gets out of situations that a wise person would not have got into – but the clever person may still do so all the same.

And as Docx avers: ‘the clown is always in a deeper relationship with the audience than with his ostensible subject.’

The plates that may now smash will be as big as the union itself.

The United Kingdom of Great Britain and Northern Ireland may not last another few years in either form or substance.

But the clown-king may still be able to get away with it – and still be prime minister of whatever is left, with claps and cheers for more.

The audience may never see or care what damage is done in the meantime.

And this is not just because of the skills and talents of the clown-king but because of the stage we are now at in the story of Brexit and the United Kingdom – to use a phrase of Johnson’s earnest antonym as prime minister – there may be no real alternative.

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“Will it please you to see the epilogue, or to hear a Bergomask dance between two of our company?”

– Act V, Scene 1, A Midsummer Night’s Dream

 

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Whoopsie: the government did not get the commission report on judicial review that it was hoping for

 19th March 2021

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‘Toulouse’s suggestion was not what Audrey wanted to hear.’

– Moulin Rouge

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Sometimes – just sometimes – in the world of law and policy there are moments when welcome things do happen.

Back in August 2020 this blog covered the government’s announcement of an ‘independent panel to look at judicial review’.

It did not seem a promising move: just an attempt by the government to find cover for an assault on judicial review by means of a hand-picked commission.

But.

It is sometimes strange how things turn out.

The commission has now reported – and just a skim of the report shows that the government did not get the report it was hoping for.

In large part, the report appears to be an affirmation of the current position of judicial review – with minor changes that it is hard to feel strongly about.

(A close read of the report may dislodge this happy impression – but that is this blog’s preliminary view.)

The concluding observations of the report could have even be a post on this very blog:

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In receipt of the report, the Ministry of Justice decided that it would try harder to find people to tell them what they wanted to hear.

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‘We want to keep this conversation going.’

We can bet they do.

Like a frustrated news show producer who cannot find any talking-head expert to say the desired things, the Ministry of Justice is now resorting to a Vox Pox.

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At bottom, the problem here is a mismatch, a dislocation – such as those recently discussed on this blog.

The discrepancy is between the heady rhetoric of ‘activist judges’ – a rhetoric that has a life of its own – and the mundane reality of what actually happens in courts.

The commission, to their credit, looked hard and reported on what they saw.

Yet those Ministry of Justice, to their discredit, want to keep on until they are told what they want to hear.

Perhaps the Ministry of Justice will get what they want – and then move to limit judicial review.

One can never be optimistic about law and policy for very long, and the illiberals and authoritarians are relentless.

But this report is a welcome break from the push towards populist authoritarianism in our political and legal affairs.

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For a more detailed account of the just-published report, see Paul Daly’s blogpost here.

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What now stands between a populist authoritarian government with a huge majority and a full scale assault on civil liberties and human rights?

 18th March 2021

Earlier this week the house of commons passed the government’s illiberal Police, Crime, Sentencing, and Courts Bill with a ninety-six majority.

So given this high majority the obvious question is what would actually stop or hinder a populist and authoritarian government from seeking to pass primary legislation that would remove or undermine basic legal protections and rights? 

This is not a trivial or academic question.

The usual ‘gatekeepers’ that would prevent a government from not even proposing such things are no longer in place.

For example, the offices of lord chancellor and attorney-general are occupied by politicians who happen to be lawyers but have no credentials in protecting either the rule of law or fundamental freedoms.

And we have a government heady with ‘will of the people’ rhetoric that has developed a taste for attacking or disregarding what checks and balances the constitution of the United Kingdom has to offer.

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In constitutional theory, the next check – once legislation is proposed – is the house of commons.

But with such a large majority – and the tendency for even supposedly ‘libertarian’ government backbenchers to vote in accordance with the whip and accept limp front-bench assurances – there is no realistic way that the house of commons is any check or balance on this government.

And if the opposition do oppose – which cannot be assumed, given the official opposition’s habit of not opposing things for tactical and strategic reasons – then such opposition can and will be weaponised by hyper-partisan ministers and their media supporters.

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Next there is the house of lords, where (fortunately) the government does not have an in-built majority.

And the house of lords can vote things down and pass amendments.

But.

When constitutional push comes to political shove, the house of lords will usually backdown once the house of commons has reaffirmed its support for a measure.

This is in part that the the house of lords has a, well, constitutional disability in respect of confronting the democratic house.

There will only be a few occasions where the house of lords will use its power to delay legislation under the parliament acts.

And that power is that: to delay.

A determined government, with the support of the house of commons, will get its legislative way in the end.

A government in these circumstances would not even need to resort to an ‘enabling act’ – as it would get through any desired illiberal legislation anyway.

There are a very few exceptions to this: such as a bill containing any provision to extend the maximum duration of a parliament beyond five years.

But otherwise: there is nothing that can ultimately stop an illiberal bill eventually becoming an act of parliament.

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And then we come to the courts.

Here we have another problem.

Because of the doctrine of parliamentary supremacy there is nothing that the courts would be able to do – as long as the government has ensured that the statutory drafting is precise and tight.

The human rights act, for example, provides no legal basis for an act of parliament to be disapplied.

The judgments of the European court of human rights are not binding.

The European communities act, which did enable a court to disapply an act of parliament on certain grounds, is no longer part of domestic law.

‘Common law rights’ capable of frustrating an act of parliament exist only in undergraduate law student essays.

Even with the powers the courts do have, the government is seeking to limit access to judicial review by all possible means: in substantive law, by procedural restrictions, and by denying legal aid.

(And the courts have taken an illiberal turn anyway: and we now have a president of the supreme court, in an unanimous judgment, telling the court of appeal off for not according ‘respect’ to a home secretary’s assessments.)

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Before the general election of December 2019 we had the unpleasant predicament of a government that was populist and authoritarian – but at least it did not have a parliamentary majority.

Now, by reason of that general election and its result, we have a government with the same illiberal instincts but with all the sheer legal force of parliamentary supremacy at their disposal.

That the opposition parties facilitated an early general election in December 2019 was a moment of political madness.

And now – until at least December 2024 – we have a government that is able with ease to get the house of commons to pass the most illiberal legislation – and there is ultimately nothing that either the house of lords or the courts can do – as long as the legislation is precise and tight.

Brace, brace.

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The contest between sovereignty and legitimacy – the dilemma for the Crown

10th March 2021

Yesterday the writer Reni Eddo-Lodge tweeted a brilliant observation about our constitutional and media arrangements:

This blog post expands on this brilliant observation.

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The starting point is sovereignty.

In the United Kingdom – or at least in England and Wales – the ultimate source of all legal power is the crown.

Acts of parliament derive their force from royal assent – and thereby so do all powers exercised under those acts of parliament.

Certain entities – such as the British Broadcasting Corporation – owe their legal existence to the legal magic of a royal charter.

Executive power other than under acts of parliament often is exercised under the royal prerogative or under the Queen’s privy council.

The jurisdiction of the high court is based on the old courts of the king’s (and queen’s bench) and the lord chancellor as keeper of the monarch’s conscience.

Magistrates are often justices of the (king’s and queen’s) peace.

And prosecutions and other proceedings in public interest are brought in the name of the crown – including at, well, the crown court.

The legal sovereignty of the crown – like turtles – goes all the way down.

(There are those who aver that this doctrine is a royal peculiar in respect of the constitutional law of England and Wales, and that the sovereignty of the crown may not have the same effect in the laws of Scotland and Northern Ireland.)

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But.

Sovereignty is not the same as legitimacy.

The legal source of power does not, by itself, render that power acceptable by the governed – at least in many complex societies. 

Those who have and use ultimate power also need to have – or be seen to have – legitimacy.

In a republic, this problem can be addressed by the term ‘the people’.

The authority of a constitution is derived from ‘the people’ – and even prosecutions can be brought in the name of ‘the people’.

CTL+F “crown” > CTL+R “the people”.

Of course, in practice ‘the people’ may well have as little actual influence as they would do under a monarchy.

But that does not seem to matter.

Things are expressly done in the name of ‘the people’ and this appears to make all the difference.

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In a monarchy such as the United Kingdom the contest between sovereignty and legitimacy is met by the phrase ‘constitutional monarchy’.

The sovereignty – and powers – of the crown are thereby subject to the constraints – the checks and balances – of a constitution.

(And, yes: a country does have a constitution even if that constitution is not codified in a single written document – for there is a descriptive answer to the question ‘how is this country constituted?’

These checks and balances apply not only to things done (or can be done) by a monarch himself or herself but also to things done with powers derived from the crown.

For example, an act of parliament will still need to be interpreted and applied by a court, regardless of royal assent.

And a prime minister and government is accountable to parliament.

Parliaments, in turn, are subject to periodic general elections.

And so the people are, in an indirect way, in charge – even if not formally as ‘the people’.

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But what happens when a ‘constitutional monarchy’ does not have (much) legitimacy?

As this blog set out in a recent post, the crown is a markedly fragile and malleable institution – notwithstanding its familiarity and durability.

For example, when the Queen was born in 1926, her grandfather had taken the throne as king of both Great Britain and Ireland, as well as emperor of India and elsewhere – and as she grew up, the majority of Ireland became a republic and the empire converted to a commonwealth, while the next king – her uncle – was forced to abdicate by a bunch of politicians.

The Queen and her inner circle are acutely aware of the precariousness of the monarchy.

So this need for constant validation.

For as Eddo-Lodge points out, the one thing that the monarchy really cannot do – by definition – is expressly seek the consent of the governed. 

And so, not being able to obtain our consent, it seeks our approval.

But the approval – or apparent approval – of the people cannot be easily sought or obtained other than through the structures of the established media.

(The extent to which the internet and social media has disrupted and will continue to disrupt this predicament is not yet clear.)

Here we come to the tweet to which Eddo-Lodge herself was responding, from the commentator Mic Wright:

That the monarchy constantly needs such approval is not a bug of our constitutional arrangements, but a core feature.

And that the media – that can regulate that approval – in turn will use and abuse that power of conferring (apparent) public approval is also not a surprise.

With great power usually comes great irresponsibility, whatever the political philosopher Benjamin Parker says otherwise.

We therefore have the worst of both worlds.

A source of sovereignty that is needy for legitimacy, but one which cannot obtain that approval directly and so is dependent on a media that will naturally abuse its power.

There is therefore a hole at the centre of our constitutional arrangements.

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Most of the time this gap does not matter.

Days and weeks pass, royal scandals come and go, and things look calm and carry on.

Crises are averted – and the crown and the media negotiate a new relationship of use and abuse.

But.

Sometimes crises may not be averted, and the problems that do come will not then conveniently go.

And there may be a reckoning.

The constitutional equivalent of a credit crunch.

Perhaps the fall-out from the Meghan and Harry interview will not lead to any great upset – nor any fall-out from the activities of other members of the royal family.

Perhaps all this will be soon forgotten, with the coming of spring and the (heralded) end of lockdown.

Yet, even if the ship of state stabilises it will still be just as prone to capsizing.  

And that is ultimately because the sovereign cannot obtain legitimacy directly from consent, and so needs our approval instead.

***

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The day after the Meghan and Harry interview – how the crown is more precarious than many realise

8th March 2021

A recent post at this blog averred that while the Netflix show The Crown gets a lot of the historical detail wrong it probably gets one wider point right – that there is a constant sense of precariousness felt by the Queen in respect of the monarchy of the United Kingdom.

By ‘precarious’ I do not mean a fear that the whole shabang will suddenly crash down – but instead that there is an ongoing sense of insecurity and instability which may or may not lead to wider insecurities and instabilities, and that this needs management and vigilance.

One suspects that the Queen is highly conscious of the institution’s fundamental changeability – she was ten when her uncle was forced to abdicate by a bunch of politicians; when she was twelve Ireland elected their own president and when she was twenty-two Ireland was explicitly a republic; and as she grew up generally the British empire was converting into a commonwealth, as elsewhere other monarchies declined and fell.

Only with hindsight do we see the period after 1952 as one of continuity and durability in our constitutional history – it probably did not seem that it would necessarily go that way seventy years ago.

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Of course: the monarchy of the United Kingdom is to a certain extent a special case.

Indeed – the very term ‘United Kingdom’ indicates that it is the monarchy that defines the current combined political identity of Great Britain and Northern Ireland.

Few other countries make the very political form of their constitutional arrangements the term by which they are generally known – the obvious other example is the United States.

And as that previous post on this blog also averred, the crown is so deeply embedded in our constitutional arrangements – it is, for example, the conceptual basis of power for each of the executive, the legislature and the judiciary – that to change everything over to a republic scarcely seems worth the time and effort.

(Though, of course, once upon a time, the United Kingdom leaving the European Union also scarcely seemed worth the time and effort – but it happened anyway.)

The crown also has its loud and intimidating defenders in the media – though that very loud intimidation may in turn be seen as an indication of insecurity.

Because of all these things, the institution of the monarchy is not likely to disappear in a political instance.

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But.

The institution of the monarchy is also not bound to stay in its present form either.

In the lifetime of the Queen herself, the monarchy has gone through profound changes – while projecting the comforting image of things staying much the same.

From king of Great Britain and Ireland and emperor of India, and elsewhere, to what we have now – via a forced abdication comparable in constitutional significance to the ejection of James II in 1688-9.

The monarchy has, since the year of the Queen’s birth in 1926, perhaps gone thorough more changes than in any ninety-five year period since 1701.

So to project the last ninety-five years of royal history forward is not to see more stability, but to expect more fundamental change – including maybe the departure of Northern Ireland and Scotland from the United Kingdom.

(Though no doubt the ‘United Kingdom’ will keep calling itself that, just as some gongs are still named the order of the British empire.)

In essence: the present – and, for us, familiar – arrangements of the monarchy of the United Kingdom are not fixed and eternal.

They have profoundly changed in the lifetime of the current monarch – and they can profoundly change further.

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“In this country, amid the clash of arms, the laws are not silent…judges are no respecters” – the story of when a law lord in 1941 stood up for the rights of an individual against a home secretary, and what then happened to that law lord

27th February 2021

The illiberal and unanimous decision yesterday of the supreme court of the United Kingdom in the Shamima Begum case is reminiscent of another illiberal decision of the highest court, previously known as the appellate committee of the house of lords.

That case – which most lawyers will know and most non-lawyers will not – is Liversidge v Anderson.

This case dealt with the rights of the individual in respect of regulation 18B of the Defence (General) Regulations 1939.

That regulation provided:

‘If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.’

In other words: detention without trial at the discretion of the home secretary.

Of course, many would think such a dreadful thing would never happen in England, with our robust common law rights and so on.

For as even Winston Churchill said:

‘to cast a man into prison without formulating any charge known to the law is in the highest degree odious and forms the basis of all totalitarian regimes’.

(It is worth noting that ‘odious’ was quite the word for Churchill – see also his ‘fight them on the beaches’ speech: ‘Even though large tracts of Europe and many old and famous States have fallen or may fall into the grip of the Gestapo and all the odious apparatus of Nazi rule, we shall not flag or fail’.)

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But although detention without trial was (supposedly) ‘in the highest degree odious’, the United Kingdom did it anyway.

And one of those detained was Robert Liversidge.

The detention order from the home secretary was as follows:

‘DETENTION ORDER.

 ‘Whereas I have reasonable cause to believe Jack Perlzweig alias Robert Liversidge to be a person of hostile associations and that by reason thereof it is necessary to exercise control over him: Now, therefore, I, in pursuance of the power conferred on me by reg. 18B of the Defence (General) Regulations, 1939, hereby make the following order: I direct that the above-mentioned Jack Perlzweig alias Robert Liversidge be detained.
 
 ‘(Signed) John Anderson,
 
‘One of His Majesty’s Principal Secretaries of State’

 

No charge; no prosecution; no trial; no conviction; no sentence.

Just the opinion of the home secretary.

And so Liversidge brought a legal case against the then home secretary Sir John Anderson, and this was the case that reached the house of lords in 1941.

Liversidge, who averred he was falsely imprisoned, wanted to know the case against him.

But Viscount Maugham and the majority of the law lords were having none of Liversidge’s nonsense.

In a sequence of speeches that are rather quite remarkable the law lords – to use Lord Reed’s unfortunate phrase – accorded respect to the determination of the home secretary:

‘there is no appeal from the decision of the Secretary of State in these matters provided only that he acts in good faith’.

The appeal was dismissed, and Liversidge – sitting in Brixton prison – was ordered at the end of Maugham’s speech to pay the home secretary’s legal costs (though it is not clear whether this order was actually made).

*

But not all the law lords nodded-along.

Lord Atkin sat through the very same submissions in September 1941, and he came to a very different conclusion.

He gave a dissenting speech which contained this passage (which I here break into smaller paragraphs for flow):

‘I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive.
 
‘Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin (1850) 5 Ex 378 , cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman [1941] AC 378, 393 : “In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.”
 
In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.
 
‘It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
 
‘In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.
 
‘I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.
 
‘To recapitulate: The words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them.
 
‘They are used in the Defence Regulations in the natural meaning, and, when it is intended to express the meaning now imputed to them, different and apt words are used in the regulations generally and in this regulation in particular.
 
Even if it were relevant, which it is not, there is no absurdity or no such degree of public mischief as would lead to a non-natural construction.
 
‘I know of only one authority which might justify the suggested method of construction: “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’” (“Through the Looking Glass,” c. vi.)
 
‘After all this long discussion the question is whether the words “If a man has” can mean “If a man thinks he has.” I am of opinion that they cannot, and that the case should be decided accordingly.
 
‘If it be true, as, for the foregoing reasons, I am profoundly convinced it is, that the Home Secretary has not been given an unconditional authority to detain, the true decision in the [case] before us ought not to be difficult to make.’
 
 
*
Lord Atkin, 1941: ‘judges are no respecters of persons’
 
Lord Reed, 2021: ‘[the court of appeal] did not give the Home Secretary’s assessment the respect which it should have received’
 
*
 
 
Lord Atkin’s speech in 1941 did not go down well with his fellow judges.
 
Lord Atkin was cancelled.
 
As David Pannick details in his book Judges, the other law lords shunned Atkin.
 
Viscount Maugham, in an extraordinary step, even wrote a letter to the Times about the language used by his fellow law lord (the short house of lords debate on that letter is here.)
 
But Atkin was right.
 
As a later law lord, Lord Diplock said in a 1979 house of lords case:
 
‘For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right.’
 
But that was no consolation to Liversidge detained in Brixton prison back in 1941.
 
Nor was it consolation to Atkin – for according to Pannick it was widely believed that Atkin never recovered from the hostility of his fellow judges before his death in 1944.
 
*
 
Perhaps in a few years a supreme court justice may suggest – perhaps cautiously in an extra-judicial lecture, or perhaps more confidently in an actual decision – that the court of appeal got the Begum case right, and the supreme court did not.
 
That will be no consolation to anyone either.
 
But as the 1941 case of Liversidge v Anderson shows, it is not the first time that the judges of the highest court – in the words of one of its greatest former members – ‘show themselves more executive minded than the executive’.
 
And it certainly will not be the last time they do this in respect of the rights of the individual in the face of the powers of a home secretary.
 
***
 
Sources – Judges by David Pannick and In the highest degree odious: detention without trial in wartime Britain by A W Brian Simpson – and both books are highly recommended
 

*****

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

15th February 2021

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

From yesterday’s Sunday Telegraph:

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

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

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

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

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

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

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

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

There were many others.

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

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

*

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

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

Historiography has moved on.

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

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

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

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

*

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

Certainly many ideologues do.

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

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

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

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

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

*

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

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

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

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

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

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

 13th February 2021

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

See here, here, and here.

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

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

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

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

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

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

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

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

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

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

But the job is not done.

In fact, nothing gets done.

And the constitutional abuses carry on as before.

*

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

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

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

(Ahem.)

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

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

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

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

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

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

*

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

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

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

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

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

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

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

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

*

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

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

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

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

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

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

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

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

12th February 2021

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

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

Constitutionalism in a tweed jacket.

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

Constitutionalism waving a placard.

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

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

This greater enemy is hyper-partisanship.

For hyper-partisanship is the dark matter of constitutionalism.

It is anti-constitutionalism.

*

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

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

Without tensions you do not even have politics.

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

*

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

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

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

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

*

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

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

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

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

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

Impeachments should not be partisan matters.

*

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

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

So, instead of Trump it would be Clinton.

And instead of Boris Johnson it would be Corbyn.

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

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

Of course not.

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

*

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

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

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

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

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

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