Category: Constitutional and Legal History

“The British constitution is whatever government can(not) get away with”

18th August 2021

There are only two particular things I knew about Austin Mitchell, the former member of parliament whose death was announced today.

The first was that, before he became a politician, he was a capable historian and the author of “The Whigs in opposition, 1815–1830”.

The second was his phrase that (I think) I can remember reading back in the 1980s but which I can only track online to 1997:

‘The British constitution is whatever government can get away with.’ 

This phrase has stuck with me as a politics student in the late 1980s, as a history student in the 1990s, and as a lawyer and constitutional commentator thereafter.

It is a perfect way of summing up a descriptive (as opposed to prescriptive) approach to constitutional matters.

(Anyone can witter on about what a constitution ‘should’ do, and constitution-mongering is easy – the difficulty is often working out exactly what in practice a constitution is – and is not – doing and why/how.)

And the phrase correctly focuses on the most serious predicament in the constitution of the United Kingdom: the lack of real checks and balances on the executive.

I personally prefer to render Mitchell’s dictum slightly differently, though the ultimate meaning is the same (emphasis added):

‘The British constitution is whatever government cannot get away with.’ 

In other words: if one was to plot all the instances where the executive cannot just do as it wishes then you would have a fair descriptive portrayal of the constitution.

To an extent that depiction would correspond with the text books on government and law – but also to an extent that depiction would not be in many academic books or papers.

As different as a picture of an elephant drawn by second-hand description against a high-resolution photograph.

So I know little about Mitchell as a person or as a politician – but that one phrase of his set off over thirty years of practical constitutional thinking and writing.

Or at least the constitutional commentary that I can get away with.

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Slaves as merchandise: what the first reported English case law on slavery tells us – the Butts v Penny case of 1677

13th August 2021

This blog recently looked at the end of the Atlantic slave trade, with the last (known) surviving transatlantic slaves and what their lives told us about law.

The last (known) victim died as recently as 1940, that is within the lifetime of four sitting United States senators.

This blog now moves to the beginnings of how English law dealt with slavey, with the Butts v Penny case of 1677.

(This is the first of an intended series of posts, dealing with cases on slavery and the slave trade.)

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Before we look at the case, there are three points of context.

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First, and by way of background: there was (supposedly) by the 1600s no (formal) slavery in England.

There had been been something known as ‘villeinage’ – where villeins, like human garden gnomes, were in effect held to be property fixed to the land.

Villeins however had (limited) legal protections, and could not be bought and sold like mere chattels.

By the 1600s, however, villeinage had in substance ended.

But it was the nearest English law had, at that point, to the notion of slavery.

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Second: by the 1670s English merchants had been happily and deeply involved in the slave trade for over a hundred years.

The slave trader John Hawkins was trading in slaves as early as the 1560s.

So impressed were those at the time with this trade in slaves that when Hawkins was granted a coat of arms, on its crest there was ‘a demi Moor in his proper colour, bound and captive’.

The role of English merchants in the trade in slaves was thereby not something that those at the time were somehow ashamed of – it was something openly celebrated.

At the time, a coat of arms was among the most public statement about a thing a person could make.

‘a demi Moor in his proper colour, bound and captive’

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Third: by the 1670s the trade in slaves even had the official recognition of the English state.

As early as 1618, James I had supported the establishment of a ‘Company of Royal Adventurers Trading into Africa’ and in 1663 a royal charter was granted to the Royal African Company.

So although the English courts had not yet grappled with the slave trade in its case law, and although it was a concept not (directly) known in English law, slavery and the slave trade was certainly something that was legally recognised and sanctioned.

For a court in 1677 to decide that there could not be a trade in slaves would go against both over a hundred years of actual mercantile practice and over fifty years of official support.

The odd thing, perhaps, was that it took so long for a dispute to reach the English courts to be reported.

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For completeness, mention should now be made of a 1569 case: Cartwright.

This is the case where (supposedly) it was held that ‘England was too pure an air for a slave to breathe in’.

The problem is that this celebrated – and later much-quoted – case was that it was not reported (that is, recorded) at the time, and we only know about if from later mentions in the 1700s.

Like a lost Shakespeare poem that we know about only from quotation, we do not have the original.

And it not being reported at the time, it had no contemporary impact or wider significance – if a judge said those rousing words at all.

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So we come to the 1677 case of Butts v Penny.

Here we have two law reports.

The first is from a collection of cases reported by the judge Sir Creswell Levinz.

Unfortunately, the Dictionary of National Biography tells us, that is ‘some division of opinion among English judges as to Levinz’s merits as a reporter’.

His report is here – and it is one brief report among many others he reported:

The other report is not from a judge nor even from a practising lawyer, but from an endearingly obsessive non-practising barrister called Joseph Keble, who just turned up to court every day to report cases that ended up filling twenty volumes.

His report differs from that of Levinz – and is even shorter:

Again, for Keble this was just one report among many, many others.

Neither Levinz nor Keble emphasise their reports of this case, and if you scroll (or leaf) through their reports, the report is just reported like any other.

The fact that the case was about slaves did not strike either reporter as being especially noteworthy, and presumably it did not strike their contemporaries as being that noteworthy either.

The reports are not consistent – for example, one says 100 slaves and one says 10 (and a half?).

As Levinz may have been a/the judge in the case, and is anyway the more senior lawyer of the two, his report would normally be preferred – regardless of his mixed reputation.

What does this case tell us?

First: Butts (the plaintiff) had bought slaves, and that Penny (the defendant) had taken them.

Second: Butts was suing Penny on the basis of ‘trover‘ – which means that Butts was not demanding the physical return of the slaves but was suing for their cash equivalent.

This was thereby a commercial case – and trover cases were a commonplace of the time – but unlike most commercial cases (then as now) this had not settled and so had to be determined by a court.

Third: the value or other importance of the case was such that Penny instructed a lawyer, Thompson, to put the defence – on the law, rather than on the facts.

Fourth: the lawyer Thompson put the defence that there could not be property in people – Keble says the lawyer compared the situation with the then extinguished state of villeinage.

Had the court sided with Thompson’s submission on this then perhaps the history of the law of slavery would have taken a different direction.

But after a century of English slave trading and given the royal sanction for the slave trade, it would have been a robust court that would have made such a decision.

Fifth: the court deferred to mercantile practice – the custom of merchants.

In essence: because as a commercial fact slaves were bought and sold, then the court must accept that slaves could be bought and sold.

Slaves had fewer protections than villeins – indeed no legal protections at all.

Slaves – human beings – were ‘merchandise’.

And as merchandise, they could thereby be the subject of an action for trover.

Like any other property.

And sixth: the court made reference to the slaves being ‘infidels’ as if that somehow reinforced the decision made.

And so the plaintiff won.

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The striking thing about this case is, well, just how un-striking it was at the time.

A commercial case among hundreds of others, with the briefest (and inconsistent) law reports.

The court just nodded along with the custom of merchants.

And that was that.

No outcry, no obvious public attention.

The same matter-of-fact, bureaucratic mentality that was to be a feature of how the English courts generally dealt with the issue of slavery for the next hundred or so years.

The court did not even seem to regard itself as making new law or establishing any precedent – it was instead just applying existing commercial law to yet another form of property.

As if it was completely normal.

One can presume that before 1677, similar cases would have settled on the assumption that slaves were ‘of course’ merchandise and so could be subject to an action in trover.

Only this otherwise unknown Mr Penny went to the length of litigating the case to court, employing the lawyer Thompson to raise a legal (rather than evidential) defence, and then Mr Penny lost.

Butts v Penny is an unexceptional exceptional case.

Exceptional to us, as we see human beings casually reduced to ‘merchandise’.

Unexceptional to those at the time, other than Mr Penny getting his lawyer to make a spirited but futile defence.

And this was the first mark on the legal record of how English courts would practically deal with the slave trade.

As Hannah Arendt said in a different context, this is how banal an evil can be.

**

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The last surviving transatlantic slaves and what their lives tell us about the law

11th August 2021

As part of my research into slavery and the law, I want to ascertain the chronological parameters of the transatlantic slave trade.

At one end, in the sixteenth and seventeenth centuries, there is the emergence of the trade in the days when the legal system(s) were very different to now – with rights of action and forms of property with which many modern lawyers would not now be familiar.

But what of at the end?

Of course, we all know that the trade had (supposedly) ended by the early to mid nineteenth century.

But in fact the last victims of the trade were alive until modern times.

The last (known) living victim did not die until 1940 – within the lifetime of four currently serving United Senators

And if one looks at the lives of the last three of those who are known to have survived, you get some interesting insights into the role of (relatively) recent law in respect of transatlantic slavery.

The survivors names were Oluale Kossola (also known as Cudjo Lewis), Redohsi, and Matilda McCrear – see here, here and here.

The ‘legal’ insights one gets are:

– how transactions were still being made in Africa, and how the supply of slaves was still organised so as to meet demand;

– how the traders deftly evaded justice – by procedural delays, as well as destroying evidence and hiding the human evidence – and also by jury verdicts;

– how survivors did not have the automatic benefit of American citizenship after emancipation because they were born abroad; and

– how one of the survivors even sought compensation (presumably in the 1920s or 1930s) but the claim was dismissed.

These examples touch on modern legal issues – the existence of illegal markets, criminal prohibition and its avoidance (both in substance and by gaming procedure and evidence), rights of citizenship, and rights to compensation.

The story of the transatlantic slave trade lasted some five hundred years.

The story goes from the legal days of actions in trover and assumpsit to the laws that exist today.

It was far more extensive both in scope and duration than many would realise.

In a way, the story of the slave trade is the story of modern commercial law.

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Laws and systems – what connects slavery, torture, imperialism, police brutality and so on

7th August 2021

This is a depressing post about law and policy, but it is one which is triggered by work I am doing on a particular project.

One of the things that I am researching and writing is about how lawyers made possible slavery and the slave trade – a topic that I wrote about at Prospect magazine, as well as in previous posts on this blog and on Twitter (see here and here).

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Of course: human beings are capable of being cruel to other human beings without laws or lawyers.

An individual person can coerce another person, can torture another person, can expropriate the possessions of another person – and so on – without any legal system or advisers in place.

That, unfortunately, appears to be the nature of our species – at least given the archaeological and historical record.

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For enslavement, torture, expropriation – and so on – to exist in any organised society (that is, say, a human grouping larger than Dunbar’s Number) requires the help of norms and rules.

Either such practices will not be prohibited or such practices will be positively facilitated.

In other words: slavery, torture and imperialism in any society depend on systems of rules being in place that enable them.

And in such modern societies, where the practice of law is usually a distinct profession, this in turn means that such practices are facilitated by lawyers.

Lawyers draft the relevant legal instruments, and lawyers then advise those who seek to rely on legal rights as set out in those instruments and otherwise.

And many of these lawyers did so (and some still do, for example, with the torture memoranda in the United States) with absolute moral neutrality – they are not here to gainsay the law, but to advise on what one can get away with under the law.

A similar legal infrastructure exists still in respect of defending the police and other state actors in respect of coercion and lethal force against civilians.

None of this – from slavery to systemic police brutality – none of this would be possible, but for laws and those who make those laws work.

Of course: the saving grace is that there are laws which (supposedly) prohibit each of these things, and there are lawyers who will challenge such laws and defend those affected.

And such liberal and progressive laws and lawyers should be celebrated.

But.

It has to be laws and lawyers which take on slavery, torture, imperialism, police brutality – and so on.

And this is because such things only exist in any organised society because of laws – and often lawyers – in the first place.

All that liberal and progressive  laws and lawyers are taking away are what other laws and lawyers provided in the first place.

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Lord Reed’s signal: the politics of the Supreme Court (continued)

5th August 2021

Over at Prospect there is a wise and informative article on the supreme court of the United Kingdom.

The piece is by the law professor and former adviser to house of lords committee Alexander Horne.

It makes the point well that the supreme court is taking a more conservative, restrictive approach to public law cases – those are the cases that concern the legality of actions by public bodies – especially when those concern policy.

If so, then there will – in turn – be less need for the current government to ‘reform’ judicial review, the usual means by which the courts deal with public law cases.

If so, this may be significant – at least in its effects.

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The supreme court in the United Kingdom – unlike its American counterpart – does not hear many judicial review cases.

This is not least because there is no codified constitution against which the courts can assess the legality of the actions of state actors.

This in turn means that there is not really a small-c conservative, small-l liberal division in the politics of the supreme court.

Almost all the cases heard by the supreme court do not concern judicial review.

That said, the cases which the court selects to hear and then give emphatic judgments will usually have a powerful effect on the courts below – well beyond the force of any binding legal precedent.

This is a signal that will be understood by – and probably influence – the judges whose day-to-day work involves public law cases and judicial reviews.

It will also be noted by the lawyers who specialise in bringing (or not bringing) certain cases.

In effect: because of the signal from Lord Reed’s supreme court, fewer judicial reviews involving policy will be brought – and of those brought, fewer are likely to succeed.

There will, of course, be hardy lawyers and even judges that will still seek to apply anxious scrutiny to cases involving policy questions.

But those judges and lawyers will soon be in the minority.

And this effect will have a practical impact far greater than could be achieved by bill before parliament.

The days of any expansive approach to dealing with the legality of policies in judicial review cases are coming to an end.

The supreme court seems to be signalling the retreat.

**

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Four hundred years after the civil wars, Parliament is being asked to give power back to the Crown

3rd August 2021

You would think that the grand question of the relationship between the powers of the crown and of parliament had been more-or-less settled over the last 400 years of our history.

The trend has been for the ‘prerogative’ powers of the crown – those powers that have legal effect because the crown is said to have such powers – to be subject to regulation or control by parliament and the courts.

And this is not an unusual thing for a polity that has become more democratic.

Some of these powers have moved to being under parliamentary and judicial supervision or direction at different times – but the tide has generally been in one direction.

But.

As the historian Robert Saunders explains lucidly in this thread, we have a remarkable turn in the tide.

In particular:

The issue, is of course, the repeal of the unliked and unloved Fixed-term Parliaments Act.

This is the 2011 legislation which has never resulted in there being a parliament lasting an entire fixed-term.

Given how easily governments, through parliament, have circumvented the core provision of the legislation, it must be regarded – at least on the face of it – as one of the most singularly useless acts of parliament ever enacted.

(This blog has previously discussed this statute here.)

But.

The principle behind the legislation was – and is – valid and important.

It should be for parliament – and not the executive – to decide when there should be an early general election (that is, an election before the end of a fixed term).

That there have perhaps been frustrations and misadventures with the legislation so far does not mean that the law should be abandoned absolutely – no more than any other prerogative being handed back to the monarch (and by implication the prime minister).

The historical trend away from passing power away from the executive to supervision or control by parliament and the executive has been bucked.

And, fittingly, it is this cavalier (in both senses) government seeking this reversal.

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The ejection of a Member of Parliament for pointing out the lies of the Prime Minister is a practical example of the function-failure of the UK constitution

The suspension of the member of parliament Dawn Butler from the house of commons is a significant example of the function-failure of the constitution of the United Kingdom.

Butler’s suspension was because she called the prime minister a liar on the floor of the house of commons.

But as the current prime minister casually and freely lies in the house of commons (and elsewhere) this suspension creates a constitutional mismatch.

In essence: there is no real sanction for a prime minister (or other member of parliament) for lying to the house of commons, while there is a real sanction for those members of parliament who point it out.

It is an extraordinary – and counter-intuitive – constitutional predicament.

There is something very wrong here.

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How did we get into this mess?

First, it must be understood and accepted that there is a problem with prime ministerial dishonesty.

Perhaps there always has been – and our current prime minister is no worse than his predecessors – but even if this shruggy view is accepted, there is no doubt the current prime minister lies and lies.

That Hamlet’s father and Jacob Marley were both dead to begin with, and that Boris Johnson  lies, are fundaments in English culture.

One source for the prime minister’s ongoing dishonesty is this particularised, non-sensational list put forward by leaders of six parties in the house of commons to the speaker:

There are similar examples in almost every session of prime minister’s questions.

A more sensational compendium is in this widely viewed video from Peter Stefanovic:

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The reason to emphasise the prime minister’s actual dishonesty as a real concern is that the supposedly pragmatic constitution of the United Kingdom is supposedly good at practical (if inelegant) solutions to actual problems.

This, we are told by constitutional fogeys, is why our constitution is cuts above the formal codified constitutions of foreigners with their ‘rigid’ rules.

Well.

Here is an actual constitutional problem in need of a practical ‘flexible’ solution – and we ain’t got one.

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The second aspect of the problem is that the rules of parliament (which are distinct from the law of the land) in effect prohibit members of parliament from accusing other members of parliament of dishonesty – regardless of whether there is any dishonesty.

It would even be against parliamentary rules to say of a member of parliament that they are a liar even if the lies have been admitted.

The formal guide to the rules of parliament is known as Erskine May, and the relevant passage about accusations of dishonesty is:

‘Expressions when used in respect of other Members which are regarded with particular seriousness, generally leading to prompt intervention from the Chair and often a requirement on the Member to withdraw the words, include the imputation of false or unavowed motives; the misrepresentation of the language of another and the accusation of misrepresentation; and charges of uttering a deliberate falsehood.’

This is not an absolute bar to making accusations of dishonesty against other members of parliament – there is a formal but ineffective way:

‘If a Member wishes to pursue accusations of a kind not permitted because of these principles, the proper course is to table a distinct motion about the conduct of the other Member.’

The issue with such a motion is that – even if passed: so what?

Erskine May also does have a section on misleading the house, which provides:

‘The Commons may treat the making of a deliberately misleading statement as a contempt.’

To which the issue again is: so what?

One may as well cast a line into the Thames, catch an improbable and unpolluted fish, and slap that unfortunate fish on the dispatch box.

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The wider predicament is that the constitution of the United Kingdom is premised on what the historian Peter Hennessy has long characterised as the ‘good chap’ theory of government.

Here is Hennessy’s phrase being used back in the innocent days of 2005 where the concern was merely memoirs by former officials.

More recently, in 2019, here is Hennessy and another author explaining in detail the failures of the ‘good chap’ theory – a report which should be read by anyone with an interest in constitutional affairs.

In essence: the constitutional arrangements of the United Kingdom work as an honour-based system based on those with power exercising self-restraint.

All it takes is a knave to disrupt and undermine the system – and there is nothing within the system to check and balance such knavery.

This complacency is why there are more ready sanctions against those who accuse ministers of dishonesty than there is against the dishonesty of ministers – for the latter, according to constitutional fiction would not (or should not) happen.

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There is merit in having a general rule against lightly making serious accusations in the houses of parliament.

But the counterpoint to such a rule is that there should be a practical means of addressing the problem of ministerial dishonesty.

Otherwise we have the current situation: wonky, lop-sided and discrediting.

That Butler should face a serious a sanction while Johnson does not defies common sense and it should should defy our constitutional arrangements too.

Some may say all this shows that there is a need for a ‘written’ (or codified) constitution.

But the solution to this problem does even not need such a drastic (and unlikely) change – and the problem of executive dishonesty happens in states with written constitutions too.

The solution would be for constitutionalism to (again) be taken seriously by politicians generally.

Constitutionalism (a theme of this blog) is the notion that there are political rules and principle that are above partisanship.

The reason why the prime minister can get away with such dishonesty is that a majority of the house of commons let him.

If a majority of the house averred that such conduct was unacceptable, regardless of party or faction, then the speaker would have the powers to address the issue.

As it stands, the speaker is given the powers to deal with accusations of dishonesty, but not the dishonesty itself.

It would not need a written constitution to solve this problem.

It would instead take resolution – and, literally, resolutions.

It would need members of parliament to take constitutionalism seriously.

And until members of parliament take constitutionalism seriously again, we are going to have the now-familiar sight of our dishonest prime minister sitting safely at the dispatch box, dismissively shaking his head – while those who point out his lies are ejected.

And that is because the constitution is dismissively shaking its head too.

**

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Explaining the attack on judicial activism that never happened – three theories

22nd July 2021

The great theatre critic Kenneth Tynan said somewhere that any good theatre critic can describe what the the theatre of their day was doing – the challenge was to explain what the theatre of their day was not doing but could be doing, and why.

This is the same challenge for all commentators, including those of us who seek to explain what is happening – and not happening – with law and policy.

And, as this blog described yesterday, there one thing that is not happening is the government not making a full frontal attack on judicial review in the new courts  bill published yesterday.

(On this, see also Helen Mountfield QC at Prospect today.)

It is always weird when nothing happens when something is expected to happen.

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“Without venturing for Scrooge quite as hardily as this, I don’t mind calling on you to believe that he was ready for a good broad field of strange appearances, and that nothing between a baby and rhinoceros would have astonished him very much.

‘Now, being prepared for almost anything, he was not by any means prepared for nothing; and, consequently, when the Bell struck One, and no shape appeared, he was taken with a violent fit of trembling.’

– from A Christmas Carol by Charles Dickens

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Law and policy commentators were yesterday expectant of a rhinoceros, if not a baby.

So what was finally published – a mild piece of legislation – has given us a fit of trembling.

What have we missed?

And what can explain what happened?

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So far there are three broad theories.

The first is that this is a political false flag.

That the government has an illiberal plan – but for some reason is misdirecting us with this bill.

And indeed, as the eminent admiralty law jurist Gial Ackbar once averred, some things can be a trap.

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Could the ministry of justice really be planning to introduce a raft of amendments late in the passage of the bill, so as to force illiberal measures through?

One would hope not – and one expects ministry of justice officials and lawyers to have more dignity than their home office counterparts.

And – in general terms – bills often start off more contentious than they end, so it would be unusual for such a game of constitutional bait and switch.

That said, one should not let one’s laser field down: this government will seek to be illiberal if it can get away with it.

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If it is not a trap, there are two other possible broad explanations.

One is that put forward by this blog yesterday – which I will call the DAG theory, if only to distinguish me from Ackbar.

This theory is government-facing – and goes to the notion that there is (or was) actually a problem of judicial activism being a myth.

I first put this argument forward in my Prospect column last year, where I set out why there was a discrepancy between the (supposed) fears of the government (and its political and media supporters) and the reality of mundane administrative law decisions.

It would thereby not be a surprise that when the government came to actually legislate – rather than speechify – there was no real problem to solve with primary legislation.

The government had walked up a stair and passed a problem that was not there, and the problem was not there either yesterday, and indeed it had gone away.

If so, this is a similar to previous situations, where the government has sought to ‘reform’ the human rights act or to deal with ‘compensation culture’.

It is always difficult to make laws against turnip-ghosts.

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But there is a third theory, which you may find more plausible than either Ackbar’s or my own.

And that was put forward on Twitter by Alexander Horne.

Instead of my government-facing explanation, Horne argues that it is the policy of the courts that has changed.

And that because there is now no problem of judicial activism, it follows there is no need for a solution.

Horne makes good points.

There is certainly a shift in the supreme court under the new president Lord Reed – and Reed is, as this blog set out in a previous post, a judge who can write that judges should give the assessments of the home secretary more respect with a straight face.

*

Where Horne and I agree is that there is currently no problem of judicial activism that needs solving – the difference between us is that I aver it was a turnip-ghost all along.

Whichever theory is correct – Ackbar, DAG or Horne – there will be some commentators and campaigners who will contend that even the two proposed reforms are too much, and that they must be opposed loudly and brashly, and deploying the language of constitutional conflict.

But a good advocate knows that one should choose one’s battles.

The government’s proposals should still have the benefit of anxious scrutiny – just in case Ackbar is correct.

But one should be wary that the language of fundamental opposition to the government be devalued, for if is wasted here then it will have less purchase when it is needed.

*

A final word to the Judicial Power Project – a group with the strange view that the primary problem in the United Kingdom constitutional is judicial power and not the lack of checks and balances on either the executive or the legislature.

It would appear that the Judicial Power Project are underwhelmed with the reforms they have so long campaigned for.

You would need a heart of stone not to laugh.

**

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What has happened to the government’s fundamental attack on judicial review?

21st July 2021

I was going to use today’s post to criticise the United Kingdom government’s assault on judicial review in the Judicial Review and Courts Bill published today.

But I cannot, because they have not.

At least not in the bill as originally published.

The bill only seems to have two provisions in respect of judicial review – neither of which are exceptional nor objectionable.

One deals with a particular issue in respect of immigration judicial reviews, the other in making an additional remedy available to judges.

The latter has the strange quality in a government proposal of actually being a good idea.

*

For a sense check I looked at the comments of other legal commentators (I always try to form my own view on legal instruments and judgments before seeing what else others have said).

But they too saw the proposals as mild and uncontroversial.

Lord Anderson QC, an independent peer:

Lord Pannick QC, via my near namesake the president of the law society:

And via Joshua Rozenburg:

*

We can be quite sure that the (laughably) named Judicial Power Project – a group with the strange view that the primary problem in the constitution of the United Kingdom is unchecked judicial rather than unchecked executive or legislative power – will be disappointed.

And there is a serious question to be asked about whether the government will seek to introduce amendments during the passage of the bill – though the usual trajectory is for bills to start off illiberal and to become less so during their legislative passage.

There is also the detail about fettering judges’ discretion in respect of the new quashing orders.

But all this said: this is a significant (and welcome) law and policy anti-climax.

This government went from boasting and blustering about fundamental judicial review reform – with a wide-ranging consultation – to, well, this.

Front covers of right-wing magazines carried caricatures of stern out-of-touch judges, while the tabloids called them ‘enemies of the people’.

But as this blog previously described, the government did not get the consultation response it was looking for.

Perhaps there was never really any problem to begin with – other than in the extreme political imaginations of the government’s political and media supporters.

**

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When culture war combines with constitutional impotence: a warning from history

12th July 2021

The first time I heard about Otto von Bismarck was when I started my history A-level – until then I knew the name ‘Bismarck’ only as a name of a sunk battleship from world war two.

The first thing we learned about Bismarck the politician was that he launched a culture war – a Kulturkampf.

And the first things we learned about this Kulturkampf was that it created needless social divisions, that it was counter-productive and was quickly abandoned, and that Bismarck did not really have a sincere belief in any of it anyway.

Of course, what one gets to know from any A-level history course is often more simplistic than a more nuanced understanding that you can get from further reading and thought.

But this understanding of Bismarck and his Kulturkampf is more useful in understanding the policy of our current government than knowing the names of second world war battleships.

*

At the time of my A-levels in the late 1980s, there was the political attack on the ‘loony left’ and then a decade or so later ‘political correctness’ was the target – ‘gone mad’ or otherwise – and now it is ‘deep woke’ or whatever.

And although from time to time this politics of nasty name-calling was translated into policy and law – for example, section 28 – it never seemed (at least to me, in my privileged state) the very essence of government policy until the current government.

Now there are a number of ministers who freely indulge in culture wars – playing like infants with matches.

A report published by the Fabian society today – of which I have only had a preliminary scan – offers a detailed analysis of the current culture wars and those who promote them:

These four summary bullet-points are especially plausible.

And the current configurations of media and politics seem to give each of these ‘peddlers’ more power than they may had before.

The decline in mainstream political parties as broad coalitions, moderating the extremes, means the grievance-mongers can rise quickly to political power – and that illiberal politicians can mobilise their illiberal bases directly and unashamedly.

(The political figures I remember from the late-1980s being the rent-a-quote members of parliament for ‘loony left’ hit-pieces – Beaumont-Dark, Dicks, Dickens – were all safely on the backbenches – now the quotes would come directly from the cabinet.)

The decline in traditional media as gatekeepers on who gets access to broadcasting and publication also mean that the perpetually outraged and the trolls have immediate and effectively limitless reach.

The grievance-mongers, the perpetually outraged and the trolls all existed (if with different labels) before the rise of the internet, but they did not perhaps have the easy access to media and political power.

A recent post on this blog averred that this political culture war has, in turn, constitutional – and constitutionalist – implications.

There is a reckless political belief that there are no constitutional rules or norms which are beyond being gamed for political advantage.

And when culture war combines with constitutional impotence then we have the politics of another German chancellor – you know, that one whose name you still do not need to have studied history to have heard of.

There is a worrying alignment of culture war and constitutional weakness, and unless one or both of these are addressed, it will not be difficult for knaves or fools to exploit their grim opportunity.

**

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