Category: Constitutional Law

A government should not be able to deprive people of possessions and property by mere ministerial diktat

3rd March 2022

Yesterday’s short post turned out to be rather popular, with a number of informed and insightful comments.

(Perhaps that is a hint that I should keep these blogposts succinct!)

The question puzzling me today is whether those clamouring for United Kingdom sanctions against oligarchs realise that it is not a good thing for the government to have summary powers to deprive individuals of possessions and other property.

When the government uses summary powers, say, to deport members of the Windrush generation, or to remove a person’s British citizenship, then liberal rightly are concerned.

Individuals have rights, and there are things no person or group may do to them, without violating their rights.

And if all individuals have rights, and oligarchs are individuals, then it follows that oligarchs have rights.

These rights may not be absolute – and property rights especially can be subject to interferences by the state.

But such interferences need to have a lawful and reasonable basis and follow due process.

And this is the same for oligarchs, as it is for anyone else.

That the government cannot just deprive people of possessions and property by mere ministerial diktat is not a bad thing in a liberal society.

And those who clap and cheer at the prospect of possessions and property being taken by the state without any lawful and reasonable basis, and without due process, should be careful what they wish for.

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But… But… Russia has a written constitution with liberal provisions

28th February 2022

As the Russian imperialist invasion of Ukraine unfolds, and as it becomes plain the autocratic hold which Putin has over the Russian state and people, it may not be a good time to point out that – on paper – Russia has a written, liberal constitution.

But let us consider this point any way.

You can look at an English translation of the Russian constitution here (though there have been amendments since this version).

Scroll down – and you will find all the old favourites of liberals and greatest hits of progressives.

You can see almost every provision that would gladden your heart to see written in a codified constitution.

And all…

…completely useless.

For perhaps the least important constitutional thing in any liberal state are the words written down on paper.

More important are checks and balances, by which provisions can be practically enforced against those with political power.

And most important of all is a sense of constitutionalism – the notion that there are political rules that are to be followed, even against the partisan and personal interests of those with power.

Sometimes codification can make a marginal difference in the liberal direction – that because there is a portable instrument certain checks and balances are easier to point to and rely on.

But the difference is only marginal.

A written – that is, codified – constitution is never, by itself, a liberal and progressive panacea.

Just scroll down that Russian constitution, with its nice and attractive ideal provisions, and compare and contrast with reality.

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The constitutional significance of today’s delayed cabinet meeting

21st February 2022

Something unusual happened today.

A planned cabinet meeting was suddenly postponed with ten minutes to go and – this is the important thing – this was done before the glare of the public.

The reason appears to be a policy row between the Chancellor of the Exchequer and the Health Secretary.

Before we look at why this is unusual – and what it signifies constitutionally – let us first look at what is not unusual about this.

It is not unusual for cabinet ministers to disagree – even about major policy issues.

Such disagreement is routine – and it is even to be expected, especially between a finance department and a spending department.

And because such disagreements are a commonplace, there are mechanisms in place to resolve these tensions before they become public contradictions.

One mechanism is ongoing informal (and sometimes even formal) exchanges between the Exchequer and the other department.

Another mechanism is the system of cabinet committees and sub-committees where differences are discussed and agreed positions arrived at – sometimes under the chair of the Prime Minister (or Deputy Prime Minister).

And the third mechanism is the assertion of prime ministerial authority (in theory ‘cabinet collective responsibility’ – where the defeated Chancellor or minister just has to to take it – or leave the cabinet.

Here think about Michael Heseltine’s dramatic departure from Margaret Thatcher’s cabinet over the Westland political drama.

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Today, however, none of these mechanisms appear to have worked.

And so we had the undignified public difference, and a full cabinet meeting suddenly had to be postponed.

The ongoing informal (and sometimes even formal) exchanges between the Exchequer and the health department seem to have failed.

The system of cabinet committees and sub-committees seem to have failed.

And prime ministerial authority also seems to have failed – indeed the Prime Minister seems to have been unaware of the difference.

Something is wrong – seriously wrong – in the business of government for this row to have manifested itself publicly today with the real effect of an unexpectedly delayed cabinet meeting.

It is a signal – and it signifies things may not be well with the constitutional processes that regulate the common differences between Whitehall departments.

And that, from a constitutionalist perspective, is a worrying signal indeed.

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Today a “senior ally” of the Prime Minister appeared to place improper pressure on the police

11th February 2022

This was an interesting tweet from earlier today:

So much to unpack in this.

But perhaps the most striking thing is that such an utterance was made at all.

The journalist is experienced and well-regarded, and so we can safely assume this was said by someone.

Journalistic convention means “senior ally” could mean a range of people – including Boris Johnson himself – but it would be someone significant.

And what is this “senior ally” doing with this speech act?

Well.

It appears that they are seeking to influence the police investigation.

Indeed, in this context, the statement quoted could even amount to an attempt to intimidate or otherwise wrongly place pressure on the police.

You may remember that the Prime Minister said that there would not be “a running commentary” on the police investigation.

Well, this quoted remark is more of  “a getting carried away” commentary.

The correct position for the police would be to disregard such a statement – though it may irk them into imposing a sanction just so to show their independence.

And the correct position at Johnson’s end would be for a “senior ally” to have not said this at all.

But looking at the two Swinford tweets above, you get the sense that this is some “barrack-room” (or “cabinet-room”?) non-lawyer coming up with some clever-clever line – though one which would not survive contact with legal reality.

Such spinning and framing may work with the lobby, and thereby influence media processes, but it will not work with a legalistic process.

Wrong tool, wrong job.

Since that reported statement, it would seem wiser “allies” are aware of the unfortunate impression that statement gave:

That Downing Street even had to put out such an assurance is, by itself, telling.

It tells us that there are some in Number Ten who realise the legal danger the Prime Minister is in – and that effectively taunting the police is not a sensible tactic.

Perhaps this strange moment will be forgotten – but what may linger is the sense  that Johnson – either through his “senior allies” or otherwise – has a lack of seriousness about his legal peril.

That grave problems can be got out of by such desperate expedients.

Johnson and his “senior allies” should brace, brace.

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The Resignation of a Metropolitan Police Commissioner

10th February 2022

This evening the Commissioner of the Metropolitan Police announced their resignation.

Good.

This was the senior police officer who supervised the operation that resulted in the murder of Jean Charles de Menezes and who obstructed the work of the Daniel Morgan inquiry.

This was the senior police officer who acted more like a shop steward for their police officers rather than the people’s commissioner of the police.

They were forced to resign.

Good.

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But.

There is a problem here beyond the failings of this one senior police officer.

A structural problem about how the Metropolitan Police is a law unto itself – an effectively ungovernable mass of individuals permitted to routinely inflict coercive force on others without any meaningful accountability.

Yes: it is a Good Thing that the police are not under the direct power of any minister or other politician – that the police have absolute operational independence.

But this absolute operational independence should not be at the cost of an absolute lack of accountability.

Power tends to corrupt, and coercive power tends to corrupt absolutely.

As and when there are failings of the Metropolitan Police there is a mix of defiance (the “thin blue line” or “not in their shoes”), evasion and misdirection, and sometimes outright misinformation.

Any response, in fact, other than accepting and owning mistakes.

And these are the officers who can inflict their coercive powers on others on the basis of mere ‘reasonable suspicion’ – but refuse to be accountable to the public even on the basis of virtual certainty.

How do you solve this problem?

How do you have a police force that is operationally independent of the government – but also does not become an unaccountable abuser of its own powers?

Who should watch the watchmen – and how?

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The strange constitutional situation if Johnson lingers on as Prime Minister

4th February 2022

The constitution of the United Kingdom is a strange thing.

As a matter of constitutional theory, it hands a Prime Minister with a substantive majority two powerful weapons: the royal prerogative (and associated patronage, such as appointing and sacking ministers) and the doctrine of parliamentary supremacy.

On the paper page of the textbook, there is little that would check or balance a determined Prime Minister unwilling to play along with conventions.

But.

The constitution of the United Kingdom also spits out Prime Ministers between general elections.

Indeed, since 1982 – forty years – more Prime Ministers have lost office between general elections than because of general elections.

Thatcher (1990), Blair (2007), Cameron (2016) and May (2019) all lost office between general elections, while only Major (1997) and Brown (2010) have lost office at a general election.

And this week just gone, it looked as if the current Prime Minister would also lose office – even though he won a thumping majority in 2019.

There is no doubt that he is politically weak – and the spate of recent Downing Street resignations do not signify anything positive for him.

And it is obvious that a significant number of his own parliamentary party do not want him as Prime Minister.

It would seem less than a majority of the Commons wants him to personally continue as Prime Minister.

Yet: is he constitutionally weak?

Can he hold on, if he is really determined to do so?

The obvious means of his departure would be a no confidence vote by the parliamentary Conservative party.

An alternative means would be – say as with Thatcher – that he realises he has little or no ministerial support and resigns – though this unlikely given the cabinet are perhaps the only ones who will support him.

If there is not a confidence vote by the parliamentary Conservative party – or if there is one, and he wins – then we would be in interesting constitutional territory.

The nearest examples I can think of are the minority administrations of Callaghan (in the period before 1979), Major (in the period up to 1997) and May (2017-2019) – where there were Prime Ministers in office but not with power.

Perhaps like Callaghan and Major he will linger on, even though there was not a majority in the Commons in favour of him personally remaining (as opposed to a majority in the parliamentary Conservative party).

Perhaps there could then be a parliamentary vote of no confidence – but it is difficult to see Conservative MPs risking a general election just to get rid of Johnson as leader.

So: it is not clear what will happen if he lingers on.

What do you think?

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The current political drama – and the question of a ‘written constitution’

2nd February 2022

Every time there is some political drama there will be those who will make a critical comment and then add “and that is why we need a written constitution”.

They will. no doubt, nod as they type this, and many will also nod as they read it.

There is no political problem imaginable to which somebody will not say “and that is why we need a written constitution’.

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In my commentary I have been sceptical of this stock response.

So critical that some companion commentator will make the accusation that I am against “written” – that is codified – constitutions.

“Look at all this,” they will say as they survey that day’s political devastation, “look at all this, how can you be against a written constitution?”

*

As we look down together at the smoking ruins left by that day’s political events, I wonder if they have a point.

But this is what I would mutter in response :-

“I am not – actually – against a codified constitution for the United Kingdom.

“Not in principle.

“My two primary reservations are that, first, there is no mechanism – given the doctrine of parliamentary supremacy – for enacting or entrenching such a constitution.

“It would only be an Act of Parliament away from repeal or wrecking amendment.

“There is therefore no point in such make-believe.

“And second, a codified constitution can entrench executive power and make it more difficult to check and balance that power.

“A written constitution in our current post-Brexit hyper-partisan politics would simply be gamed by the authoritarians.

“Codified constitutions are not necessarily liberal and progressive devices.

“A codified constitution is not a panacea.”

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My companion would shake – not nod – their head and say :-

“Fine – you say you are not against codified constitutions in principle.

“But.

“Just look at all this – the collapsed institutions and smouldering conventions.

“The disregarded checks and toppled balances.

“This is the direct consequences of there not being any codification.

“The knaves can do as they wish, and the fools cannot stop them.

“What you get wrong is that you miss that un-codified constitutional arrangements can also be good and bad.

“And what we have here is, in practice, bad constitutional arrangements.

“Un-codified constitutions are also not necessarily liberal and progressive devices.

“An un-codified constitution is also not a panacea.”

*

My wise companion may have a point – and their views are unsettling, even disconcerting.

The problem of enactment and entrenchment would remain – well, as long as our national constitutional faith is in the doctrine of parliamentary supremacy.

But an un-codified constitution requires – instead of some portable document – a general sense of constitutionalism.

By which I mean: a sense that there are political rules which are more important than party advantage and personal advancement.

And if constitutionalism no longer has any purchase, then I have to concede an un-codified constitution can be just as illiberal and reactionary as any executive-biased codified constitution.

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“Hmmm,” I say to my wise companion, “you may have a point.” 

We then watch as the surviving political debris all crashes to the ground.

“Brace brace,” they say.

 

 

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A “nice” parliament?

1st February 2022

Today the speaker of the House of Commons said he would like parliament to be “nice”.

For this, and for insights generally, listen to this clip to the end:

Like courts, parliament is a place for conflict and for those conflicts to be resolved.

And, again like courts, parliament has developed conventions and an etiquette for smoothing the jagged edges of that conflict.

“The honourable member” is the parliamentary equivalent of “my learned friend”.

Courts – at least civil courts – have also rules on when a person can be accused of dishonesty.

It is not an allegation that can be made by a lawyer lightly.

But it is an allegation that can, if there is evidence, be made in certain circumstances.

In parliament an allegation of dishonesty cannot be made – at least in debate.

An allegation of dishonesty has instead to be made in a substantive motion – see the commentary here.

As the historian Robert Saunders avers, this rule against accusing in debate other members of parliament of dishonesty was part of a wider understanding:

So we now have the ridiculous situation where nothing practical can be done to stop the Prime Minister – or any other member of parliament – from being dishonest…

…and if another member of parliament – grandstanding or otherwise) points this out in debate, it is that other member of parliament that is thrown out of the house of commons.

One can understand how the rules of the house of commons came to end up like this.

But that does not make the rules seem any less daft.

The solution, however, is not “niceness”.

Politeness, yes, and decorum and respect – just as courts (usually) have politeness and decorum.

But courts – while usually calm and polite and respectful – are not “nice”.

Courts can be places of horrible and raw human drama and conflict, where often difficult decisions have to be made that will, in turn, often ruin the lives of the parties involved.

To regard them as “nice” is to confuse form with substance.

A parliament also has to deal with often difficult decisions that will ruin – or even end – the lives of people at home and abroad, sometimes millions of people.

A parliament is a place of conflict and high tension – with immense consequences for real people.

As such, like a court, it is sensible to take off the rough edges of conduct and vocabulary, so as to take the heat and aggression out of exchanges.

But the underlying tensions will still be there – and these tensions need to be recognised if they are to be resolved.

Those tensions cannot be cured by “niceness” – and, indeed, a refusal to recognise those tensions risks turning those tensions into contradictions.

And that will not help anybody.

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Sue Gray’s time bomb – why this “update” means more trouble for the Prime Minister

31st January 2022

An “update” of the Sue Gray report was published today.

It did not say a lot – but it said enough.

Any competent close reading of the update would indicate that the final report will be even worse for the (current) Prime Minister.

There are (at least) three “gatherings” under criminal investigation that the Prime Minister either attended or knew about.

And for there to these gatherings to be a police matter means there is already evidence of serious and flagrant breaches.

And there are nine other gatherings to be investigated by police.

Given that the report – even in these stymied conditions – was able to say the following, this could not be more serious for the Prime Minister:

“ii. At least some of the gatherings in question represent a serious failure to observe not just the high standards expected of those working at the heart of Government but also of the standards expected of the entire British population at the time.

“iii. At times it seems there was too little thought given to what was happening across the country in considering the appropriateness of some of these gatherings, the risks they presented to public health and how they might appear to the public. There were failures of leadership and judgment by different parts of No 10 and the Cabinet Office at different times. Some of the events should not have been allowed to take place. Other events should not have been allowed to develop as they did.”

Accountability for these Downing Street parties – while everyone else was under strict lockdown – is only a matter of time.

That is why this report is a timebomb for Boris.

And in any sensible political system, the Prime Minister would now resign than let this timebomb explode.

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Perversion of the course of public business – today’s clumsy Met intervention in Partygate

28 January 2022

Sometimes things are not straightforward.

And sometimes things just become more complicated.

Today was one of those times.

This morning the Metropolitan Police took it upon themselves to request that the Sue Gray report only makes “minimal reference” to matters in respect of which the police are investigating.

The effect of this intervention may be that the report is published without detail of the more damaging aspects of the Downing Street partying.

This truncated/redacted report may even “clear” the Prime Minister – at least according to his political and media supporters.

There would also be the prospect of the police investigation taking no further action, with the damaging details never being made public.

This is probably more an accident than a design – but the effect is likely to be to potentially cloak the more damaging detail from parliamentary and public view.

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It is difficult to understand the Metropolitan police position.

As breaches of the (obviously relevant) Covid rules are summary only then there is no risk of prejudicing a jury trial.

Perhaps they want to disclose information in their own way in any interviews with suspects – but such investigatory convenience should not be an absolute check.

The world should not be organised entirely for the benefit of the police – especially when they have been tardy.

Perhaps there are more serious offences afoot – the alleged direction that “mobiles should be cleaned” could, depending on circumstances, be perversion of the course of justice – and some are saying (with hope more than expectation) that there may even be grounds for charges for misconduct in public office.

But what makes the police position preposterous is that they delayed investigating at all until the Gray inquiry did the police’s job for them.

And now the police have belatedly decided to do their job, they now wish to interfere with the normal course of public business.

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All this continues to undermine political transparency and parliamentary accountability.

Inquires and investigations often take matters away from the floor of the House of Commons or the press conference, and ministers and their supporters get a rhetorical (and sometimes legal) basis for not answering questions.

“We need to wait for…”

And politicians don’t need much excuse to not answer questions.

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The Metropolitan Police have, of course, an interest in this matter.

The parties took place bang in the middle of no doubt the most heavily policed area of the UK – Whitehall.

And the parties took place while the police were freely handing out huge fines to those breaking Covid rules elsewhere.

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Had the Metropolitan Police investigated this matter properly when it should have done – and there can be no evidence before Sue Gray and her team which is not capable of being ascertained by the Police with their greater investigative powers – then the police would not now be disrupting the publication of a report.

And there is perhaps a lesson here for those who clamour for police investigations of politicians and their circles: be careful what you wish for.

Police investigations do not always go in accordance with wishful thinking.

Sometimes police investigations can pervert the course of public business.

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