Category: Constitutional and Legal History

“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).

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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.’
 
 
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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.

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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.)

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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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Why Vernon Bogdanor’s Telegraph piece needed a response – and why the constitution of the United Kingdom does not care about your nostalgia

11th February 2021

Over at Prospect magazine yesterday I set out a brief response to a piece by Vernon Bogdanor on Brexit and the constitution.

The first version of my Prospect post was a sentence-by-sentence ‘fisking’ of the Telegraph article – until I realised that such an approach gave equal space and prominence to each error and unsubstantiated assertion.

Such an approach would be a problem in this instance because there was one flaw so fundamental that it warranted addressing in and by itself.

The fundamental mistake was a refusal to accept that the Good Friday Agreement transformed the constitutional arrangements of the United Kingdom.

Indeed, as I set out in that piece and have said before: in practical terms, the Good Friday Agreement is now the most important single document in the constitution of the United Kingdom.

It is certainly far more significant than the old constitutional fogey favourites such as Magna Carta and the Bill of Rights.

Even before Brexit, the Good Friday Agreement’s express requirement that the European Convention on Human Rights must be capable of being directly enforceable in the courts of Northern Ireland severely limited the attempts of Tory politicians to repeal the Human Rights Act 1998.

And with Brexit, the Good Friday Agreement limited what forms of Brexit were available to the United Kingdom and the European Union.

Other than a ‘hard border’ requiring impediments on trade and commerce between the north and the south on the island of Ireland, there were only two possibilities.

One was that the whole of the United Kingdom remained (excuse the pun) within the European Union single market and customs union to the extent it affected any Northern Irish matter – and this was the approach favoured by former prime minister Theresa May.

Or the alignment was only between the north and south parts of the island of Ireland, thereby meaning the friction of customs and regulatory checks was between the island of Great Britain and Northern Ireland – and this was the approach favoured by prime minster Boris Johnson and for which he won a general election mandate.

There was no other way the problem could have been addressed.

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But stepping back from this problem and its practical solution, it is difficult to think of any other single legal instrument that has shaped public policy in such an emphatic way.

And this is rare in the politics of the United Kingdom.

This is because the doctrine of parliamentary supremacy means that usually a government in Westminster with an overall majority will get its way.

The notion is odd that anyone can point to a legal document and say ‘no, Westminster government, you cannot just do as you wish because of this legal instrument’.

But this is what has happened.

Faced with this unusual constitutional phenomenon, there are two approaches.

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The first approach, adopted by Bogdanor in the Telegraph article is to try to force the constitution into the box it was in before the Good Friday Agreement.

That is to take the pre-1999 constitutional arrangements of the United Kingdom as the standard from which things have since deviated, and to cure such deviations by reasserting a classic model.

Here the very final sentence of the Telegraph piece is the tell: “Today’s argument is about the cohesion of the kingdom”.

*

The second approach is to try to see how the constitution has changed without prioritising one moment of the constitution’s development over the other.

The Good Friday Agreement is not about ‘the cohesion of the kingdom’.

The Good Friday Agreement is the recognition that in respect of Northern Ireland there is a contested polity.

The agreement then regulates that contested polity by positing the absolute standard of consent.

The United Kingdom, to invoke a phrase, has no selfish or strategic interest in Northern Ireland remaining part of the union, ‘cohesively’ or otherwise.

The agreement provides that any political question in respect of the position of Northern Ireland has to be approached not only from the perspective of the United Kingdom but also of Ireland.

The agreement also provides for an all-island and cross-border approach where possible, the granting of citizenship rights, and for the removal of visible infrastructure on the border.

To demand that the United Kingdom to again be ‘cohesive’ is to miss the point of the Good Friday Agreement.

The Good Friday Agreement is the (realistic and mature) recognition that in respect of Northern Ireland the ‘kingdom’ is no longer ‘cohesive’ but is contested.

*

The twin perils of constitutionalism are 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.

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!

(I have written on this later approach here.)

Perhaps it is because we do not have a codified constitution that constitutional discourse in the United Kingdom – or in England, to be more exact – is so impoverished.

Both the fogeys and the utopians prioritise a normative approach to constitutionalism – preoccupied with what they aver the constitution should be, rather than what it actually is.

What both miss is a positive approach – for, in descriptive terms, all a constitution is is the answer to the question: how is this polity constituted?

And the descriptive answer to that question will change from time to time, sometimes in accordance with your values and sometimes in breach of them.

The constitution of the United Kingdom – that is, the descriptive answer to the question of how the United Kingdom is currently constituted –  is just there, and it will always be there is some form as long as the United Kingdom exists.

And the constitution does not care for your nostalgia – or your utopianism.

*

POSTSCRIPT – 4pm same day

Bogdanor has now responded to my response here – nothing in each changes anything, and I stand by my position that his Telegraph article fundamentally misuunderstands the constitutional significance of the Good Friiday Agreement.

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The Queen’s Consent – a strange and obscure feature of the constitution of the United Kingdom – and why it should be abolished

8th February 2021

This post is about a thing of which you may not have heard.

The Queen’s Consent.

No, not that.

The Queen’s Consent is instead an odd and generally unknown feature of the constitution of the United Kingdom.

It is in the news today because of some investigative reporting by the Guardian newspaper.

The news report is here and their explainer about the Queen’s Consent is here.

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So what is the Queen’s Consent – and why, if at all, does it matter?

Let us start with what it is not.

The Queen’s Consent is not the ‘royal assent’ that is given to a bill passed by parliament that transforms it, by legal magic, into an act of parliament.

True, the royal assent is itself not widely understood.

Many think it is the queen herself that signs the legislation, but royal assent to legislation is done on the monarch’s behalf (and the last monarch to give royal assent personally was Victoria).

But Queen’s Consent is a different constitutional beast.

*

Queen’s Consent is the right of the monarch (and the heir to the throne) to be consulted on – and thereby to veto – any legislation that affects the private interests of the crown.

Imagine if the constitution of the United States provided formally for the president of the day – Donald Trump or otherwise – to intervene in congress to stop or to amend proposed legislation that affected the financial interests of the president or the president’s family.

That is what the Queen’s Consent provides for in the United Kingdom.

It is a structural right to lobby beyond the dreams of any cynical Westminster ‘public affairs’ firm.

*

There are a couple of things to note before we get onto just how strange this constitutional device is.

First, this is not about placing the crown beyond or above the law – it is instead (ahem) ‘upstream’ from the law being in place.

It is about being able to shape the law before it takes any effect.

Second, it is not about the public powers of the crown – the so-called ‘royal prerogative’ though the crown also has the right also to be consulted about legislation that affects those powers.

This is about the right to be consulted about proposed laws that affect the crown’s private interests rather than its public powers.

*

And now we come to four strange things about the Queen’s Consent.

First – and notwithstanding today’s front page splash in the Guardian – a good deal about the Queen’s Consent is in the public domain, hiding in plain sight.

It is just that few people know about it or care.

In the cabinet office’s guide to legislation for civil servants it warrants an entire chapter.

There is also an entire 32-page pamphlet devoted to the topic for the benefit of those who draft legislation.

The detailed ‘Erskine May’ book of authority on parliamentary procedure also has a section on the subject.

(Look carefully at the wording of what Erskine May says here.)

And in 2014 there was even a parliamentary select committee report on the practice.

But unless you are a constitutional obsessive you would, however, not be aware of any of this.

*

The second curious feature of the Queen’s Consent is perhaps the most extraordinary one.

The Queen’s Consent has no legal basis whatsoever.

There is no statute, nor even (it seems) any parliamentary resolution.

It is instead is something that is just, well, done.

If you scroll back up you will see that even Erskine May does not even offer any authority for the procedure.

And if you look at the practitioner’s legal encyclopaedia Halsbury’s Laws of England the authority that is given for the practice is Erskine May.

The 2014 select committee took evidence from specialists in parliamentary procedure and constitutional law experts – and the select committee could not identify any legal basis for the practice.

The only (supposed) authority is that it is ‘long-established’.

Given that the parliamentary bible Erskine May insists that the Queen’s Consent is ‘required‘ one would hope (and even expect) there to be some legal basis for the consent, but there is none.

To the extent that the Queen’s Consent has any formal basis at all, it is entirely based on parliamentary procedure.

And this means that it would be easy to abolish, for what is giveth by parliamentary procedure can be be taketh away by parliamentary procedure.

No law would need to be passed at all.

The queen would not need to be consulted, either by the Queen’s Consent or otherwise.

*

The third oddity about the Queen’s Consent is similar to the second.

For just as there is no visible legal basis for this structural bias, there is also hardly any visible effect.

It is all done in secret.

And this is why today’s Guardian report has some significance.

It appears to be a documented example where the Queen’s Consent was used to actually shape legislation.

Yes, it is from nearly fifty years ago.

And yes, it is partly dependent on a 1975 speech from Geoffrey Howe in parliament, who delightfully savages us like a dead sheep all these years later.

But – given the secrecy that cloaks the use of the Queen’s Consent procedure, and the general restrictions on official records in the United Kingdom – that is the best evidence we are likely to readily get in practice.

Some will note the lack of evidence of this formal step having any effect and will contend from that lack of evidence that the formal step is merely a formality.

That there is nothing to look at here, and that there is nothing for us too worry our heads about.

But.

The evidence we do have indicates that the process is taken seriously and is intended to be practical.

Chapter 6 of the guide for those drafting legislation is insistent that notice be given to the court with sufficient time for it to have effect – and also that it should not be done prematurely.

None of this would be relevant, still less stipulated, if the stage was merely formal and ceremonial.

Those responsible for legislation are reminded again and again to make sure that the stage is treated so that it is efficacious for the crown.

Here it is worth noting that until fairly recently this guidance was hidden from public view using the excuse that it was covered by legal professional privilege – from the 2014 select committee report:

Steers on mere ceremonial steps are usually not anywhere close to being subject to legal professional privilege.

A further indication that the Queen’s Consent is a consequential stage rather than some ceremonial gimmick is the sheer detail of what has been and can be covered.

None of this would make sense if the Queen’s Consent was a mere formality.

*

The fourth curious – and somewhat quaint and amusing – feature of the Queen’s Consent is how it make a private solicitors’ office a formal part of the constitution of the United Kingdom.

You would think this elevated role for a private individual this was the stuff of fiction – like George Smiley visiting Connie Sachs at her country cottage, or Sherlock Holmes visiting his brother at the Diogenes Club:

‘I did not know you quite so well in those days. One has to be discreet when one talks of high matters of state. You are right in thinking that he is under the British government. You would also be right in a sense if you said that occasionally he is the British government.’

But it is there in black and white.

For this formal stage of the Queen’s Consent a letter has to be sent to a private solicitor in Lincoln’s Inn Square:

The ‘language of the letters should be formal in nature’ – so presumably a bill could be frustrated if ‘Dear Sirs’ was followed by an incorrect ‘Yours sincerely’ – or even, gods forbid, there was not a ‘.’ after ‘Mr’.

It is all rather silly.

But what is not rather silly but rather serious is that that this is not to a lawyer in any public capacity in the royal household, and still less to the government’s own treasury solicitor, but to a private solicitor professionally charged with protecting and promoting private interests – and that the whole procedure is geared around the convenience of the private solicitor obtaining and then executing instructions from that solicitor’s private client.

*

And this being England – and this is more an English trait rather than a British one – there is no express mention of ‘veto’ in any of the official documents.

The language used is in terms of a consent that is ‘required’ but the implications of the consent not given are left unspoken.

In practice, and given the lack of evidence of the consent being formally withheld, what this means is that the crown is given the right and opportunity to shape prospective legislation – or in the case today disclosed by the Guardian – to make alternative arrangements before the legislation passes.

The question is not about what happens if consent is not given, but what things need to change for the necessary consent to be given.

*

There will be some who, even with all this information, will just shrug with a ‘so what?’.

There is no evidence – at least recent evidence – of the practice doing any harm.

But.

If the practice is, in fact, a mere formality then nothing will be lost with its abolition.

And if the practice does – as the procedure implies – have real effects, then it also should be abolished.

There is no good reason why the head of any state should have the privilege of the protection and promotion of their private interests by their private lawyer as a formal part of the law-making process. 

This would be wrong it had been for the benefit of President Trump’s family for bills before congress, and it is just as wrong here.

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How Theresa May casually decided that Brexit meant the United Kingdom would leave the single market and customs union – the fascinating and revealing interview with Philip Hammond

3rd February 2021

One response to the news that former chancellor Philip Hammond has given a candid and critical interview about the Brexit policy (or lack of policy) of the Theresa May administration is to sneer and jeer, announce that he should have resigned rather than be party to it, and to ‘like” and RT some tweet saying so.

And then to not give it a further thought.

Another, more worthwhile reaction is to look out the interview, and to read and consider it carefully.

And in doing so, you should compare what Hammond says now with your recollection of what Brexit seemed like at the time, from the outside.

What emerges is a picture that many of us onlookers – conscious of the issues at stake but unimpressed by the government’s shallow public messaging – suspected was true all along.

The interview – which is part of an impressive series of interviews with ‘witnesses’ of Brexit by UK in a Changing Europe – should be read in full by anyone wanting a real understanding of what happened within government on Brexit.

But below are some examples which, at least for me and my commentary, substantiated what some of us believed to be the case at the time – including about the casual nature of the huge decision to leave the single market and the customs union.

The transcript of the interview is here.

*

On the creation of the pop-up government departments, the Department for Exiting the European Union and the Department for International Trade, Hammond says:

‘Creating a new Government department, frankly, is a pretty cost-free signalling mechanism for an incoming Prime Minister. So, the Department for Exiting the European Union – a ludicrous notion, absolutely ludicrous; a rookie civil service trainee could tell you that that was a stupid idea – and the Department for International Trade, were both gestures.

‘They were ways of bringing in clear, committed Brexiteers to the Government, and plonking them in a place where they could assert their views, rally their troops, and, she hoped, provide a focal point for the hard-line Brexiteers in the parliamentary party. As well as finding out the hard way how difficult this was all going to be in practice.’

*

On the botched re-negotiation that preceded the referendum (which was so limited because it misunderstood what the European Union could offer without a treaty change):

‘We all interpreted German pragmatism as support for a more British view of the future of Europe. That was clearly not correct, so we definitely overestimated the flexibility of the Europeans.’

*

And perhaps most significantly, on the run-up to the fateful October 2016 conservative party speech in Birmingham – and its aftermath:

‘I was completely stunned by the speech that she made at the Conservative Party Conference in October 2016. I hadn’t seen the relevant part of it in advance. I’d had no input to the speech. Nick Timothy kept me completely away from it. […]

‘I was completely and utterly horrified by what I felt was almost a coup: a definition of Brexit without any proper Cabinet consultation at all. 

‘My assessment of Theresa May’s Prime Ministership, in terms of Brexit, is that she dug a 20-foot-deep hole in October 2016 in making that speech and, from that moment onwards, cupful by cupful of earth at a time, was trying to fill it in a bit so that she wasn’t in such a deep mess. […]

‘It was a disaster on all fronts, a total unmitigated disaster that scarred her Prime Ministership and should have sealed Nick Timothy’s fate, but I think she only realised later how badly that had constrained her ability to deliver any kind of practical Brexit at all.’

*

What this interview indicates – if not demonstrates – is how crucial those first few months were after the referendum were to the shape of Brexit, from June to October 2016.

That was when, in my view, the battle for Brexit was won and lost.

Until the conference speech it was possible to conceive of a number of different possible Brexits that could follow the referendum result.

(Or in my (incorrect) view at the time, that it was possible that the thing would just be delayed and delayed, as the sheer magnitude of the task became scarily apparent.)

But after the October speech, the only Brexit which was politically likely would be the absolute version with the United Kingdom leaving the single market and the customs union.

And the only way that such a Brexit could have been stopped, again in my view, would have been if the respective leaders of the labour, liberal democrat and other opposition parties had handled the prospect of a general election differently in late 2019.

In essence: in the whole of the story of Brexit so far, only (a) June to October 2016 and (b) November/December 2019 were the real turning points where Brexit could have turned out substantially different after the referendum.

The interview with Hammond, in particular, reminds us that there were non-Brexiter ‘pragmatists’ as well as (in his word) ‘refuseniks’ in those first few months after the referendum.

And notwithstanding the ‘Brexit means Brexit’ slogan of May in her party leadership bid of that summer, it was still possible to conceive of different outcomes.

The pragmatists could have prevailed.

But.

But something happened – a decision was casually made that will turn out to be as consequential for the United Kingdom as any other immensely important decision in our history.

And that decision was made by a prime minister who, on Hammond’s account, did not understand the import of her decision, and without reference to either cabinet or parliament.

An extraordinary moment, and one which is becoming more extraordinary over time.

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The fateful Bloomberg speech of 2013 – contextualising *that* speech by David Cameron eight years later

24th January 2021

Eight years ago yesterday the then prime minister David Cameron gave a speech at Bloomberg.

The speech was to have significant consequences.

The speech can be read here and can be watched here:

And, for background, there is also this Wikipedia page.

*

What should make of Cameron’s Bloomberg speech eight years later?

The speech is undeniably important in the telling of the story of Brexit.

Indeed, when historians come to write of the causes of Brexit, this speech is likely to be be emphasised as a key short-term cause.

It was the first of a sequence of events that led to the Brexit we now have: the Conservative manifesto commitment for a referendum; the 2015 general election; the return of an overall Conservative majority; the referendum bill, the (supposed) ‘re-negotiation’; the calling of the referendum; the (lacklustre) government campaign for remain; the referendum result; and so on.

In terms of a linear sequence of events, the Bloomberg speech would seem to have more reason than many others to be the prime-mover – at least in the short-term.

The first of an apparent chain reaction of political explosions, some with bigger bangs than others, that lead to the biggest bang of all: the rushed departure of the United Kingdom from the European Union.

But.

*

As Voltaire once said somewhere, history is a box of tricks we play upon our ancestors.

And so what looks neat and linear in hindsight can often be misleading.

This is because although historical narratives are (necessarily) linear if not always neat, past events are complex and invariably messy.

Accordingly, to reckon the significance of a politician’s speech – or of any text or any other speech act – one needs to place that text in contexts.

Otherwise one can fall into the error of thinking, in this particular case, that had Cameron not made that speech in 2013 there would not have been the Brexit we now have, or indeed perhaps no Brexit at all.

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One context for the speech is the political situation of the Conservative party in and around 2013.

The party was in a coalition government with the Liberal Democrats, and the party itself had not had a majority in the house of commons since the early years of the premiership of John Major some twenty years before.

And in 2011 to 2013, the Conservative party looked as if it was being out-flanked by the United Kingdom Independence Party (Ukip).

So until and unless the Conservative party addressed the reasons for Ukip support – either by facing Ukip down or by engaging with its politics – there was a real prospect that the Conservatives would go yet longer without a parliamentary majority.

The Conservative chose to share the politics of Ukip: to make the departure of the United Kingdom from the European Union a real possibility.

(And the general election results of 2015 and indeed 2019 indicate that this Conservative political strategy has worked.)

Of course, had Cameron not made the Bloomberg speech in 2013, the surge in Ukip support and its political threat to the Conservatives would not have gone away.

Even with that speech, and the Conservative manifesto commitment of a referendum, Ukip performed strongly (at least in terms of votes) in the 2013 local elections, the 2014 European Parliament elections and the 2015 general election.

As such the Cameron speech was not a cause but an effect, and had a Conservative leader not done something in response to the rise of Ukip support eight years ago yesterday, there would have been something else before not much longer instead.

Some would say that a Conservative leader could have taken on the Ukip threat – like, say, the then Labour leader Neil Kinnock did with Militant in the 1980s – but that was not realistic.

The Conservative party – like the Labour party – had not made a positive case for the European Union for decades: to the extent the European Union impinged on domestic politics, it was invariably in terms of what the United Kingdom had opposed or had opted out of.

So as long as the Conservatives sought to obtain a parliamentary majority and Ukip would challenge that, then the place and timing of the offer of any referendum was incidental.

And given that the issue of membership of the the European Union would dominate the general election of 2015, it is quite plausible to see a referendum with a Leave victory happening afterwards, even if no speech had been given at all, at Bloomberg in 2013 or elsewhere.

*

Another context for the 2013 Bloomberg speech and its referendum commitment was the casual approach of Cameron to constitutional matters generally and referendums in particular.

There had already been a United Kingdom-wide referendum on the electoral system in 2011 which Cameron and other opponents of that electoral reform had defeated comfortably.

Cameron and the Conservatives were also bullish about the impending Scottish referendum (that the United Kingdom government had then recently agreed would happen and which took place in 2014).

Referendums must have seemed a doddle.

And, in any case, that there would be a referendum on any future European Union treaty ‘giving powers to Brussels’ was part of the law.

This general lack of constitutional seriousness can be evidenced in other examples from around the same period: in 2014, the Conservatives put forward an especially flimsy proposal for repeal of the human rights act and in 2015, Cameron sought fundamental reform of the house of lords just because of a defeat on a tax credits proposal.

The historical caution of the Conservative party in respect of constitutional matters was non-existent by the time of the leadership of Cameron.

And so eight years ago yesterday for Cameron to make a commitment to a referendum of such potential constitutional import was not a big thing for him or most of his party.

He probably put no more serious thought into the actual implications of a referendum defeat than he would have put into an essay on the topic of referendums on a PPE degree course.

In hindsight one can now see the serious consequences of such a referendum – not least how it can create a ‘mandate’ that undermines not only effective parliamentary scrutiny but the very doctrine of parliamentary supremacy.

But in 2013 this was not given a second thought, nor indeed much of a first thought.

*

A third context for the speech eight years ago yesterday is not provided by a thing, but an absence of a thing.

In the late 1980s, the 1990s and the early 2000s there was such a thing as ‘Euro-scepticism’.

(I know this because I happen to have been a Maastricht-era Euro-sceptic.)

This approach had two broad features.

First, it insisted that it was primarily about being wary of the direction of the European Economic Community (and then European Union).

In this, the guiding text was another speech by a Conservative leader, at Bruges in 1988, where Margaret Thatcher said:

“We have not successfully rolled back the frontiers of the state in Britain, only to see them re-imposed at a European level with a European super-state exercising a new dominance from Brussels.”

(Euro-sceptics, however, tended to ignore a later part of the same speech where Thatcher also said “Britain does not dream of some cosy, isolated existence on the fringes of the European Community. Our destiny is in Europe, as part of the Community.”)

The second feature of Euro-scepticism was that it was often a reaction to some new treaty advancement: Maastricht, Amsterdam, the (proposed) constitutional treaty, Lisbon.

But when this juggernaut of new treaties came to a halt with the treaty of Lisbon of 2007-9 – there have not been any such significant treaties since – Euro-scepticism lost the yin to its yan.

The development of the European Union entered into a settled stage.

And Euro-scepticism, as it had existed, served no purpose – the question became not about how the latest (supposed) treaty push towards integration should be countered but about membership itself.

There was now just a binary choice.

Any referendum would not be (and could not be) about any new treaty – as envisaged by the 2011 referendum legislation – because there were no new treaties.

The only thing left for a referendum to attach itself to was the question of membership itself.

And so a further context for the 2013 speech and the 2016 referendum is that – paradoxically – the end of substantial formal moves towards European Union integration at Lisbon meant that there was more risk that membership of the European Union was in question.

Those opposed to the European Union had now the cake of no further integration, and the supper of potential withdrawal.

*

There are many other contexts – geopolitics, migration, the credit crunch and austerity, and so on.

This post is not and does not pretend to be exhaustive.

But as with another post at this blog, on counterfactuals, this post avers that Brexit was not about just one bad decision.

There are many ways things could have happened differently and the United Kingdom could still today be in a post-Brexit predicament.

(And alternatively, there are no doubt certain decisions which could have led to substantially different outcomes – such as the decision by former prime minister Theresa May to rule out membership of the single market and the decisions by opposition leaders in late-2019 to nod-along with a general election.)

But the way Brexit did happen, at least in the short-term, followed a fateful speech eight years ago yesterday – when Cameron opened a box of tricks to play upon his contemporaries.

*****

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The inauguration of a new president: mere ceremonial form and hard constitutional substance

21st January 2021

One of the few benefits of lockdown is that you are no longer expected to go to weddings and other ‘happy’ ceremonies.

Instead of days of tiresome travel and hours of boredom, one can watch the ceremony and speeches on a laptop for an hour or so and then go and do something more useful instead.

(For more on form vs substance regarding marriage ceremonies, see my 2011 New Statesman post.)

*

Much of this impatient disdain for mere ceremonial form can and should be applied to constitutional matters.

Certain symbolic events symbolise nothing other than symbolism is important only for the sake of symbolism.

Interesting perhaps for the fogeys and other enthusiasts, but often a bore for the rest of us.

And presidential inaugurations in the United States are usually fairly meaningless occasions, other than that they happen to be around the same time as when by automatic operation of law one presidential term ends and another one begins.

But the inauguration ceremony yesterday was different.

It was riveting.

*

Just as lockdown has had a few benefits notwithstanding the immense misery, so has the presidency of Donald Trump.

And one of those few benefits is that far more people now realise how the constitutional law of the United States works (and does not work) in practice.

Certain things before Trump were taken for granted to the extent that anyone realised those things existed at all.

Take, for example, what happens between a November presidential election and the January inauguration of a new presidential term.

The rights to recounts and re-run ballots; the certification of votes by each individual state; the appointment of electors for the electoral college and their obligations; and the congressional counting of the vote and certification of the winner.

Previously each of these steps – even with the contested 2000 result and Bush v Gore – was a mere formality.

One could have an informed interest in American politics and not know much or indeed anything about these obscure procedural steps.

Now many people know exactly the process that exists between the national vote and the start of a new presidential term.

And widespread knowledge about constitutional arrangements is a good thing.

It may be a bad thing for constitutional law to be exciting –  politics should take place within an agreed framework rather than constantly being about undermining that framework – but understanding the rules of any game is important for those taking part and those watching.

*

And we watched the ceremony yesterday with anxious scrutiny.

Few people in the future will realise just how nervous many of us were in the last hours and indeed minutes of the Trump presidency.

What would he do? 

What could happen?

Is it over yet?

(And indeed Trump issued another pardon with only minutes of his term to go.)

Even watching the chief justice swear in the new president was not enough: it still was not noon Eastern Standard Time.

The final one or two minutes seemed to last an eternity, even though the new president was well in to his acceptance speech.

And then: it was twelve noon EST.

Not since Charles Perrault’s Cinderella has there been a strike of twelve that produced such a wonderful general transformation.

It was over.

*

The greatest (if flawed) writer about the constitution of the United Kingdom – at least from an English perspective – Walter Bagehot made a distinction between the efficient and the dignified elements of a constitution.

Some who only know of this famous distinction misrepresent it as meaning that the dignified elements are somehow useless elements.

But this is not what Bagehot meant – what he actually said was:

“There are indeed practical men [and women] who reject the dignified parts of Government. They say, we want only to attain results, to do business: a constitution is a collection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless.

“And other reasoners, who distrust this bare philosophy, have propounded subtle arguments to prove that these dignified parts of old Governments are cardinal components of the essential apparatus, great pivots of substantial utility; and so they manufactured fallacies which the plainer school have well exposed.

“But both schools are in error. The dignified parts of Government are those which bring it force—which attract its motive power. The efficient parts only employ that power.”

He continued:

“[The dignified elements] may not do anything definite that a simpler polity would not do better; but they are the preliminaries, the needful prerequisites of all work. They raise the army, though they do not win the battle.”

In other words, it is not just important that institutions work well but they are legitimate and seen to be legitimate.

And thereby the purpose of any constitutional ceremony is not just an exercise in form but part of what confers legitimacy on those who exercise the power of the state.

Of course, we could have got by without any ceremony yesterday and just watched the clock run down in silent dread.

And of course, the ceremony was not ‘efficient’ – even the chief justice got the law wrong in that Biden was not yet the new president, at least for thirteen minutes.

But as Bagehot averred, to say part of a constitution is dignified is not to say that it is useless, but that it serves another purpose.

To be sworn in at the seat of the legislature by the head of the judiciary is a powerful indication of constitutional legitimacy, especially as it was at the very place where an insurrection happened just days ago.

This will not be enough for some Trump supporters, but it could not have been done better in the circumstances.

In more than one sense, therefore, the inauguration ceremony of Joseph Biden sought to bring dignity back to the government of the Unites States – not only in his personal manner but also in Bagehot’s sense of demonstrating to all those watching that this new presidency is constitutionally legitimate.

*****

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Beggaring the pardons – why the presidential power to pardon needs to be regulated

20th January 2021

Yesterday, on his last full day in office, President Donald Trump is reported as having issued seventy pardons, as well as having commuted seventy-three other sentences.

This in and of itself is not unusual: on his last day of office President Bill Clinton issued about twice as many pardons – including one for his brother.

Issuing a raft of pardons on one’s final day as president is now as established a tradition as the president pardoning a turkey on Thanksgiving.

Of the many things one should be annoyed or disappointed about Trump and his presidency, the mere fact of last-day questionable pardons is certainly not something unique to him.

Yet, Trump’s (actual and threatened) uses and abuses of pardons, and of his power to commute, do warrant further consideration, as they go to the heart of the relationship between the course of justice and the powers of the executive.

In essence: at what point do pardons cease to complement the justice system – showing mercy to those duly convicted – and become something else instead that undermines the justice system itself?

*

To beg for a pardon is to plead for forgiveness.

It is just that the phrase ‘I beg your pardon’ is so familiar – it now means little more than ‘can you please repeat?’ or ‘what the Dickens have you just said or done?’ – that we overlook what the word ‘pardon’ actually means – or should mean.

And to forgive an act or omission requires certainty as to what that act or omission was – else how do you know what is being forgiven?

Accordingly a pardon should be as exact in its particulars as an indictment – almost a mirror image.

A person has been convicted of and sentenced for [x] – and so it is [x] that is being forgiven.

The conviction would – or should – still stand as a public and formal finding of criminal culpability – but the convicted person would be relieved from the burden of the sentence.

It would also be implicit that an acceptance of a pardon was an admission of criminal guilt – else how can one be forgiven for a wrong, if there was no wrong in the first place?

All this is what a pardon should be about, from first principle of it being an exercise of forgiveness.

(A commutation of a sentence raises a different issue as an exercise of mercy, and does not require any implicit admission of guilt.)

*

But this is not what a presidential pardon is now understood to mean.

A presidential pardon is now, following President Gerald Ford’s pardon of President Richard Nixon for example, something that does not need to be exact in its particulars nor something that carries any implicit admission of guilt.

There does not even need to be a prosecution in place, or even envisaged.

A presidential pardon is now understood to be a ‘get out of jail, free’ card.

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The use of the ‘understood to be’ qualification above touches on another aspect of presidential pardons – they are rarely litigated and so have not (yet) been regulated by the courts or effectively by congress.

There is significant legal uncertainty as to the scope of pardons that depart from the classic model of exactness in respect of the punishment being forgiven.

The pardon for Nixon, for example, may be a political precedent but it is not a judicial precedent.

A pardon the scope of which Ford granted to Nixon may not survive judicial scrutiny.

(The way a pardon presumably would be litigated is when a prosecution appealed a defendant using a (purported) pardon as a bar on proceedings.)

This may explain why Trump did not announce a self-pardon nor Nixon-like pardons for his family and associates. 

(There may also be other practical considerations, such being able to invoke the fifth amendment against self-incrimination, which would be difficult if you were protected from such incrimination.)

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But the lack of regulation and case law raises another non-trivial possibility.

There is a fascinating piece at CNN about ‘secret pardons’.

And it is correct that there is nothing on the face of the constitution that requires a pardon to be publicly announced when it is granted.

Trump has also not complied with other conventions when granting pardons, and so there is not inherent reason why he would not flout the convention that a pardon be publicly announced.

If this happened, the first we would ever know of such a pardon would be if and when it was raised by a defendant as a bar to proceedings.

By which time this presidential term of Trump will be long gone.

And what could be done? 

Even impeaching Trump again (and again) would be pointless.

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As was once averred, power tends to corrupt and absolute power corrupts absolutely.

And so it is not surprising that it is in the two areas where an executive has, in effect, absolute power – the bestowal of honours and the granting of pardons – that there is corruption.

Those with political power will always tend to do what they can get away with, unless they are checked and balanced.

(The principle that for every power there is an equal and opposite check and balance is – or should be – the essence of constitutionalism.)

On the face of the constitution of the United States it would appear that the power to grant pardons is absolute.

Yet such an absolute power would make a nonsense of the careful separation of powers set out in the constitution generally, and of the express obligation of the president that he or she ‘shall take Care that the Laws be faithfully executed’ (Article II, section 3) in particular.

All because there has not yet been regulation of this power does not mean that a supreme court or congress may not one day set out the scope of the presidential power of pardon that accords with the constitution as a whole.

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If the word ‘pardon’ has drifted in meaning, so has the word ‘beg’.

It does not only mean ‘to plead’ – but also in the form ‘to beggar’ it can mean broadly ‘to reduce in value’: to ‘beggar belief’ is to say a thing is not worthy of belief, and to ‘beggar thy neighbour’ is to seek to aggrandise at the expense of a competitor.

In this way, Trump’s (actual and threatened) pardons – and other presidential pardons – can be seen as beggaring pardons.

But begging your pardon for that pun, there is now a compelling case for placing the power of presidential pardons on a basis so that they remain exercises of mercy to complement the course of justice, rather than undermining justice itself.

Such a congressional act or supreme court decision would be one good way for the presidency of Donald Trump to be remembered.

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