Category: Constitutional Law

What the apology to the Queen shows about the theory and practice of the Crown and the Constitution

16th January 2022

The Prime Minister Boris Johnson last week apologised to the Queen for the Downing Street partying on the eve of funeral of the Prince Philip.

This partying was, of course, in contrast to the Queen having to mourn alone

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Last week the Queen was not told that she had to wait for the result of the Sue Gray investigation.

Oh no – the Prime Minister did not think that even he could get away with that deflection to that audience.

Although it less clear what the Prime Minister is actually apologising for.

The apology of the Prime Minister to the Queen has great significance.

Not least as it shows the actual sentiments of a government that promotes performative patriotism with numerous flags behind ministers and wants the national anthem played on the television each day.

But then again, this was the government who provided unlawful advice to the Queen on prorogation – and it seems that, like lockdown regulations, genuine regard for the Queen is for other people.

It also indicates the high public esteem with which the Queen is held and that the government knows that it will not get away without any admission of fault.

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It reminded me of the early history of the telephone hacking scandal.

This was when there was a general cosy complicity between some of the media and the Metropolitan Police.

Then it appeared that telephones in the Royal Household were being hacked – and something had to be done.

And because this involved a different part of Scotland Yard to that which had the close contacts with the press, a prosecution was brought and two convictions were obtained.

This showed that – regardless of constitutional theory – the Crown had a special place within our constitutional arrangements.

There was a limit to what others with political and media power can get away with when the Crown is involved.

The Crown matters.

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In constitutional theory, the Crown has a complex and pervasive quality.

It has many modes.

It is an organising principle of a great deal of our constitution: the royal prerogative, acts of parliament (ie bills with royal assent), the high court, and much else, all derive their existence and legitimacy from the Crown.

But it is also the position of the monarch, who has special rights and privileges in respect of the executive, parliament and the courts.

And it is about Elizabeth herself, whose first Prime Minister was Winston Churchill and now is coming up to her platinum jubilee.

The extent of the power and the influence of the Crown varies with which mode is at play.

But, regardless of theory, there is every so often in practical political affairs a new situation where the involvement of the Crown makes a difference.

And last week we happened to see another one.

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A critical, general overview of the Sue Gray investigation

15th January 2022

This post brings together my posts and tweets relating to the Sue Gray investigation in to the Downing Street parties during lockdown, as well as some new thoughts, into a single general overview.

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There are a couple of preliminary points worth making.

First, investigations like this – and other such forms of ad hoc inquiry – can be signs of an unhealthy polity.

(I argued this in the Financial Times back in 2014 and on this blog last year.)

This is because many inquiries, and most demands for inquiries, are also implicit admissions of State failure.

The admission of failure is that the other permanent elements of the State – primarily the executive, the police, the permanent regulators, the ombudsman system, the legislature, and the judiciary – have all failed in their roles.

If these elements of the State had done their job properly at the time – or been allowed to do their job properly at the time – then there would be less need for ad hoc inquiries after the event.

Every demand that there ‘should be an inquiry’ is also an implicit acceptance that the elements of State with the legitimacy and the purpose to supervise and scrutinise have been deficient.

And as this blog has also averred, often those put at the head of such investigations and inquiries are not sufficiently experienced or well-suited to obtain evidence which those facing scrutiny are unwilling to provide.

(In particular, judges and barristers spend most of their careers looking at documentary evidence which has been helpfully ascertained and compiled by others, rather than ever digging out the raw evidence for themselves.)

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The second preliminary point is that ad hoc inquiries usually suit politicians and others with public power – especially if those inquiries do not have powers to compel evidence which would otherwise not need to be given.

Here it helps to think of the techie phrase Garbage In, Garbage Out (GIGO).

Most inquiries and investigations are only as good as the evidence – documents and testimony and so on – available to them.

If you control the flow of evidence in to the process, you often have significant influence of the ‘findings’ and ‘conclusions’ that come out of the other end.

Garbage In, Garbage Out.

The eye-opener for me on this was when I was a central government lawyer about fifteen-or-so years ago.

I met other central government lawyers who explained how on inquiry work they would work backwards from what they wanted to achieve to the terms of reference of the inquiry so as to ensure they put in the evidence that would tend to the desired outcome.

And the government and others with public power (for example the police) have access to many good specialised lawyers who know how to game the inquiry system like this.

This is not necessarily wrong – it is the job of a lawyer to understand the rules of procedure and of evidence in respect of any process on which they advise.

But it is certainly contrary to the naive view that an inquiry will somehow magically find all the information that will enable it to come to some desired scathing conclusion.

And when the inquiry does not reach a scathing conclusion, the reaction is often that those doing the inquiry have deliberately sought to do a ‘white wash’.

Whilst in reality, the apparent ‘white wash’ is because of what happens with the supply of evidence in the first place.

If you control input the evidence, you will tend to control the output.

Garbage In, Garbage Out.

And that is why any worthwhile inquiry or investigation always needs to be independent of those facing scrutiny and why there needs to be powers to obtain information that those facing scrutiny will not want to provide.

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Now we come to the Sue Gray investigation, the terms of reference of which are published here (I am assuming they have not been amended) – and these terms of reference should be read by everyone following this investigation.

You will see that the investigation was to be conducted by the Cabinet Secretary.

It is not unusual for the Cabinet Secretary (who is the head of the domestic civil service and reports directly to the Prime Minister) to be asked by a Prime Minister to conduct investigations into central government matters.

Within the domestic civil service the Cabinet Secretary has unique authority, although – ultimately – he or she will not be independent of the Prime Minister.

But the Cabinet Secretary is not now conducting this investigation.

This is because the Cabinet Secretary attended a gathering which is part of the investigation.

And so an investigation which sort-of-makes-sense when conducted by the head of the domestic civil service who reports directly to the Prime Minister has been passed to another civil servant who does not (at least not as part of their day job).

Sue Gray has a reputation for being independently minded.

(And note: you should be careful of hoping that this reputation means she will be necessarily critical of ministers – for a genuinely independently minded person will also be independent from the loud clamour of ministerial critics.)

But that a civil servant has a personal reputation for being independently minded does not and cannot make them structurally independent.

She is a senior civil servant – but she is not the most senior, not even within her own department of the Cabinet Office.

And so we have a problem – a type of investigation that was envisaged for the very head of the civil service now being done by a more junior colleague.

And she is investigating her own colleagues some of whom may be at the same level as her and some – like Simon Case – more senior.

The investigation is also into special advisers and others who will be close associates of her ministerial bosses.

There has long been a problem with the non-transparent and closed nature of Cabinet Secretary investigations  – but at least they sort-of-made-sense, but this arrangement must be even more unsatisfactory.

But, as this blog recently contended, the politically charged nature now accorded to this investigation would make inappropriate for any particular civil servant, let alone one who is not the Cabinet Secretary.

It is an investigation that ministers are hiding behind to avoid ministerial accountability to the House of Commons, and her report may topple (or ‘clear’) a sitting Prime Minister.

For all her merits, Sue Gray is not – and should not – be a crucial element of the constitution.

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Now we come to the structural problems of the investigation.

And here, even before we come to this investigation’s Terms of Reference, there are a number of issues:-

Gray cannot make a determination as to whether there is criminal liability, as she is not a court.

Gray cannot make an independent assessment of the application of non-legal guidance to her colleagues as she is not independent – and some of those being investigated are more senior in the civil service than she is.

Gray cannot compel testimony and documents – or even full disclosure – from any of those involved.

And Gray cannot determine whether the prime minister or another minister is in breach of the ministerial code, as she is not the prime minister.

None of these are her fault, and none of these are criticisms of any decisions she has made or not made.

These structural issues instead arise simply from the nature of the investigation she has been charged with.

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And now we come to the Terms of Reference.

If you read these carefully then you will see that there is even less scope for there to be any severe criticism published.

Any finding of apparent misconduct by any particular, named civil servant should not feature – for that will be a Human Resources issue (and that is only right, as there needs to be due process).

Here the reference to “the investigations will establish whether individual disciplinary action is warranted” has to be read with “any specific HR action against individuals will remain confidential”  – and so there may be nothing published of particularised substance on any actual breaches, as they will be part of subsequent internal proceedings.

There is mention of making “reference to adherence to the guidance in place at the time” – but this may not mean a great deal.

The word “reference” here can mean little more than the guidance will be read and perhaps mentioned.

There is no express requirement under the Terms of Reference for Gray to apply the guidance to the facts so as to ascertain whether there has been any breaches.

Gray may do so – and if she is independently minded, she may indeed do so – but there is no requirement for her to do so.

All she is required to do so is to “establish swiftly a general understanding of the nature of the gatherings, including attendance, the setting and the purpose”.

Note the “general”.

She can also refer this matter to the police  – but the threshold for what would trigger such a referral is vague.

And without being able to compel evidence, there may not be information provided to her for her to consider making any such referral.

(It is a remarkable feature of all this is how the Metropolitan Police – who can compel evidence – have fettered their own discretion and contracted out this investigation of a civil servant investigating other civil servants – who cannot compel evidence.)

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There are already problems in practice.

Parts of the investigation seem to have been leaked to the press.

And if it is leaking to the press, then presumably it would also be leaking within the civil service.

These apparent leaks are probably not from Gray and her team but from those affected who are being presented with provisional views or updates for their responses (this would be being done for fairness – even though this is not a judicial or even quasi-judicial process – for there is a general rule that those facing criticism in a report should be able to make representations).

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There are also indications that Gray has not been given full information – which is not surprising given the lack of power to compel evidence and the potentially serious consequences for facing scrutiny.

And it may be that the report keeps on delayed while new parties are uncovered.

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Recent political history – in both the United Kingdom and the United States – has seen many people looking forward to reports that then turn out (at least at first glance) not to have been as critical as many have hoped, from the Hutton report to the Mueller report.

But what is not surprising is that so many of these reports fail to be robustly critical – what is surprising is that any of these reports ever are robustly critical.

And this is not (always) because of the personal failures of those running the inquiries – but because of the structural problems of the inquiries and the ability of those (especially with competent legal advice) to regulate the flow of information.

Garbage In, Garbage Out.

Perhaps the independently minded Sue Gray will be an exception to this general view.

Perhaps notwithstanding the limits of the Terms of Reference and her inability to compel evidence, the report will match the elevated political expectations now placed on it.

Perhaps it will provide an ironic justification for the politicians who have hidden behind the investigation so as to evade accountability to Parliament – because it will genuinely be a report so substantial and far-reaching that it actually should not have been prejudged.

Perhaps.

Or it may be a report that will allow politicians to brief friendly media that they have been ‘cleared’ – without many realising the inherent limits on the investigation to find anyone in breach of anything.

(It is almost as if this investigation was structured in such a way so as to give scope to ministers to leak to the press that they have been ‘cleared’.)

Most likely is that the investigation will, well, simply comply with the Terms of Reference that have been public all along and so will provide merely “a general understanding”.

This will be a recital of facts “of the nature of the gatherings, including attendance, the setting and the purpose” – with “reference” (but maybe not more) to the relevant guidance.

But with no findings of breaches of the law, no names named, no individual culpability found.

This is an investigation that is almost

Just the (general) facts.

If so, the strange thing would be that anyone expected otherwise.

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Sue Gray should not be a crucial element of the constitution – and nor should any individual civil servant

12th January 2021

There are two conventional ways of looking at the constitution of the United Kingdom.

One is as a list of institutions: the crown, parliament, the courts, and so on.

Another is as a list of functions: the executive, the legislature, the judiciary (which corresponds generally, but not exactly) with list of institutions.

The general approach of this blog (and my commentary elsewhere) is slightly different: to see the constitution as the means by which certain basic conflicts about power are recognised and reconciled.

But whichever approach you have to understanding the constitution of the United Kingdom, one thing will always be the same.

An individual civil servant should not be a crucial element of the constitution – regardless of who that civil servant is.

A civil servant is (usually) a servant of the crown (taking the institutional approach), a part of the executive under ministerial direction (the functional approach), or has no special competence or legitimacy in resolving a contested political problem (the conflicts-based approach).

Sue Gray, the civil servant tasked with resolving the Downing Street party problem is, by informed accounts, an outstanding civil servant.

And if this was a mere exercise in fact-finding, this task may not be a problem.

But her investigation has become something more.

Sue Gray’s investigation has become a vehicle by which ministers – even at the despatch box – are evading their duty to answer urgent parliamentary questions.

Her investigation is the excuse given by our prime minister for not saying even whether he was present at a party (or parties).

But Sue Gray is not a judge determining a matter in the courts, or an appointed head of a statutory inquiry.

Her investigation is not – and should not – be a reason for the prime minister or other ministers to escape straightforward accountability.

Sue Gray should not be a crucial element of the constitution – deciding, in effect, the fate of a Prime Minister and while doing so preventing ministerial accountability to parliament and the public.

No civil servant – even the cabinet secretary, let alone a more junior figure like Sue Gray – should be placed in this position again.

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The collapse of constitutionalism?

7th January 2022

One of the themes of this blog is that formal codified constitutions are of less practical importance than a sense of constitutionalism.

By constitutionalism, I mean the view that there are certain rules and principles about a polity that have a greater priority than partisan expediency or personal ambition.

The polity of the United Kingdom may not have a codified constitution – but it did have, at least until fairly recently, a sense of constitutionalism.

It was what the great constitutional historian Peter Hennessy has dubbed as the ‘Good Chap theory of government’ – a shared understanding that things would not be pushed too far, and that there were self-denial ordinances for those with certain political powers.

In the United States – where there is a codified constitution – they are suffering from a move away from constitutionalism and a shift towards hyper-partisanship.

An illustration of this is this worrying photograph, from the first anniversary of the attempted insurrection:

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Once constitutionalism fails, then it does not matter what you have written in constitutional codes, your polity is in trouble.

(This is why I sometimes say constitutional law should be boring – for constitutional law provides the shared parameters of everyday political action, and if those parameters are continually contested then your political system is not a happy place.)

The responses of some government supporters to the acquittal of the Colston Four indicate a concerning lack of constitutionalism.

One member of parliament – a member of parliament! – even went as far as saying that ‘if the jury is a barrier to ensuring they are punished then that needs to be addressed.’

Wow.

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As I averred in a couple of pieces yesterday – here and over at Prospect – the true constitutional significance of juries is not so much about the decions that they make – but the decisions that they prevent others from making.

In essence: a jury stops a person from being convicted and punished just on the say-so of the prosecuting state.

A person may be arrested, charged and prosecuted – but if they maintain their innocence, they cannot be convicted and punished for a serious offence without the intervention of a jury.

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Of course, the Conservative member of parliament quoted above was speaking without thinking.

But that is the problem: the lack of thought – and, in particular, the lack of constitutionalism.

That politician was not alone.

A former cabinet minister said much the same.

And even the former lord chancellor Robert Buckland – who refused to resign when others did when the government proposed to use primary legislation to allow it break the law – spoke of his concerns.

This loud frustration of government supporters is, as I averred yesterday, the sweet sound of a working constitution.

But.

Their utterances also bear a more worrying meaning.

For what they are saying also indicates a collapse in constitutionalism.

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We keep drifting towards outright hyper-partisanship – Withnail and I’s arena of the unwell.

The current government routinely seeks to frustrate or remove any check or balance to its executive might, to the partisan claps and cheers of those who should but do not know better.

Some may giggle and chortle at ‘owning the libs’ .

But, in reality, there is no ownership: no sense of responsibility or care for what is possessed and can be passed on.

And so the most urgent constitutional challenge for the United Kingdom is not about codification but about culture.

How can we make politicians (and the media) care about constitutionalism again?

Or has it been lost altogether?

Perhaps it has.

Brace brace.

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The Rule of Law and the Colston Four – and why a jury acquittal shows a legal system working and not being undermined

 

The Colston Four defendants have been acquitted by a jury.

Some are contending, like this former cabinet minister, that this acquittal ‘undermines the rule of law’.

That contention is incorrect.

An acquittal is as much an aspect of the rule of law as a conviction.

Criminal courts can acquit as well as convict – both can be the outcomes of the application of due process in a particular case.

The Colston Four were acquitted by a jury – and the defendants did not deny the essential facts.

It can be open to a jury to do this – and this informative Guardian article sets out many other examples.

A jury returning a verdict that they are entitled to return is an example of the law in action, and not of a legal process undermined.

This is not to say that juries are perfect – indeed, many of the greatest miscarriages of justice have come from jury verdicts.

Juries do not always get things right.

But the constitutional importance of juries is not so much for the decisions they make, but for the decisions they take away from others.

The State may arrest, charge and prosecute a person – but they cannot convict and punish a defendant pleading ‘not guilty’ to a serious offence without a jury trial.

The implication of the former cabinet minister’s view quoted above is that it should not be open to a jury to acquit a person prosecuted for a serious offence – but only to convict and punish.

But that is not the ‘rule of law’ – it is something darker and nastier instead.

Others are fretting that the verdict creates a ‘precedent’.

It, of course, does not create any legal precedent – no jury can bind another jury, and each jury should look at the case before them on its own evidence.

Nor does it create any practical precedent – or, at least, not one which has any more force than the many previous examples set out in the Guardian article.

The real upset is that a court heard the evidence and acquitted the defendants.

This is what juries sometimes do – and they can do this because they are outwith the control of the prosecuting State.

One half-expects that this weekend’s press will see ‘government sources’ urging ‘a crackdown’ on ‘perverse’ acquittals – with a proposal for ministers to have a ‘fast track’ on imposing convictions.

And this is not to put an idea into the heads of government ministers – the idea is no doubt already there.

One irony – if that is the correct word – is that this very government sought to use primary legislation to enable ministers to break the law.

That proposal – over which the Advocate General and the Treasury Solicitor resigned (and the recently knighted former Lord Chancellor did not) – did more to undermine the rule of law than any verdict of a Bristol jury.

And the current hyper-partisanship of modern politics means that if, say, a group of fox hunters were acquitted by some shire county jury, the same people who are jeering the Bristol jury would be cheering the shire county jury instead.

But juries are juries – they make mistakes, but they are independent of State prosecutors.

And the noise of government supporters unhappy with a jury decision is the sweet sound of a working constitution.

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The myth of “Not Now” – why a crisis is a good time to change Prime Minister

20th December 2021

One of the defences used to defend against getting rid of the current Prime Minister is that it should not be done in the midst of a crisis.

This view is misconceived.

In 1916, in midst of the Great War, Asquith was replaced with Lloyd George.

In 1940, when things seemed at their worst, Chamberlain was replaced by Churchill.

In both cases, of course, this was because there was an alternative candidate who had the support of opposition members of parliament.

But it has also happened in other situations.

In 1990, during the build up to the Gulf war, Thatcher was replaced by Major – and by the governing party’s own members of parliament, not the opposition.

And indeed, it need not only be an intra-parliamentary affair.

In 1945, when there was no reason to believe the war with Japan would soon end, the British electorate replaced Churchill with Attlee.

And if you go further back, there are many half-forgotten prime ministers who were replaced at times of uncertainty or peril.

So, in historical context, the unusual thing is to retain a prime minister in a crisis rather than not to do so.

This is one of the features – some would say merits – of the flexible nature of the constitution of the United Kingdom (and of Great Britain before 1801).

A Prime Minister can be dumped quickly.

Of course: things are different now.

Any new leader of a political party has to go through a process of being elected (or, if unopposed, approved) by party members.

And there is no real prospect – as with Lloyd George or Churchill – of a politician currently becoming Prime Minister without also being the leader of their party.

So the reason why we cannot just get rid of the current Prime Minister, notwithstanding his inability to do the job, has more to do with the mechanics of party organisation (and, no doubt the leadership ambitions of others) than constitutional practice or historical precedent.

And that is a pity – as both constitutional practice and historical precedent point to a period of uncertainty or of peril as being the best time to get rid of a Prime Minister who is not up to the job.

Indeed, the singular lack of credibility of the current prime Minister in respect of public health and abiding by the rules means that it is imperative that he is replaced with someone who can be taken seriously in imposing public health restrictions.

Instead of ‘not now’ it should be ‘now, of course, now – for when else?’.

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How the Government both won and lost the Priti Patel High Court bullying case

6th December 2021

Today judgment was handed down in the case brought by the civil service union the FDA in respect of the Prime Minister’s determination that the bullying of the Home Secretary had not broken the Ministerial Code.

On the face of it, the government won the case.

And so this is what the press reported (and that is what time-poor news desks have published on their news sites):

But.

There are different ways that a government can win a case like this – and a closer look at the judgment shows that in substance this is not a welcome decision for the government at all.

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First, we need to know what the case was – and was not – about.

The case was not about deciding whether the Home Secretary is a bully or not – that was not what the court was being asked to determine, and the detailed evidence about bullying was not put before the court:

And, as that was not the question before the court, then the hot takes that the court has ‘cleared the Home Secretary of bullying’ are not and cannot be true.

The primary question before the court was whether it was open to the Prime Minister, given the information before him, to determine that there had not been a breach of the Ministerial Code.

The court found that, on this occasion, the determination that there had not been a breach of the Ministerial Code was one of the determinations open to the Prime Minister on the information before him.

But in reaching that conclusion the court made a number of points that were against the government – and these points may be significant in future cases.

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First, the court held that the Prime Minister’s determinations of the ministerial code were, in principle, amenable to judicial review by the courts.

The government made a spirited attempt to argue that the Prime Minister’s determinations of the ministerial code were not ‘justiciable’ – that the very subject matter was a no-go area for the High Court.

The court deal with justiciability in paragraphs 25 to 43 of a 61 paragraph judgment – about a third of the decision.

The court accepted that not every determination of the Code may be judicially reviewed.

And, of course, those judicial reviews which are heard by the court may not succeed (as with this case).

But there is nothing stopping a similar case on different facts succeeding just because of the subject matter.

That the court held that, in principle, prime ministerial determinations of the Ministerial Code are amenable to judicial review is a boon for transparency and accountability.

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Once the court had dismissed the government’s attack on justiciability, it turned to whether the Prime Minister had misdirected himself in applying the Code.

Here the key paragraph of the Code is:

“1.2 Ministers should be professional in all their dealings and treat all those with whom they come into contact with consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary colleagues and parliamentary staff should be proper and appropriate. Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated.”

The information before the Prime Minister was an advice from Sir Alex Allan, the independent adviser on the Code.

His advice included the following:

“My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect.

“Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“To that extent her behaviour has been in breach of the Ministerial Code, even if unintentionally. This conclusion needs to be seen in context. There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time.”

Having considered this advice, the Prime Minister’s conclusion was:

“Sir Alex’s advice found that the Home Secretary had become – justifiably in many instances – frustrated by the Home Office leadership’s lack of responsiveness and the lack of support she felt in DfID three years ago.

“He also found, however, that the Home Secretary had not always treated her civil servants with the consideration and respect that would be expected, and her approach on occasion has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“He went on to advise, therefore, that the Home Secretary had not consistently met the high standards expected of her under the Ministerial Code. 

“The Prime Minister notes Sir Alex’s advice that many of the concerns now raised were not raised at the time and that the Home Secretary was unaware of the impact that she had.

“He is reassured that the Home Secretary is sorry for inadvertently upsetting those with whom she was working. He is also reassured that relationships, practices and culture in the Home Office are much improved.

“As the arbiter of the code, having considered Sir Alex’s advice and weighing up all the factors, the Prime Minister’s judgement is that the Ministerial code was not breached.”

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The FDA’s claim was that, given Allan’s advice, this was not a conclusion that the Prime Minister could have legally made.

Here paragraph 58 of the judgment is important about the Prime Minister’s conclusions:

In other words: because the Prime Minister did not say Patel was not a bully, it must be that he either accepted Allan’s advice or did not form his own view.

Had the Prime Minister explicitly rejected Allan’s advice that it was bullying then it would have been a different legal situation.

The judgment then goes on in paragraph 59 to the other factors considered by the Prime Minister – it is not a paragraph easy to follow in one go, and may require re-reading:

The essence of the paragraph is in the sentences:

“In that context, the statement that the Prime Minister’s judgement was that the Ministerial Code was not breached is not therefore a finding that the conduct could not be described as bullying.

“Rather, it is either a statement that the Prime Minister does not consider, looking at all the factors involved, that it would be right to record that the Ministerial Code had been breached, or alternatively, that the conduct did not in all the circumstances warrant a sanction such as dismissal as it did not cause the Prime Minister to lose confidence in the minister.”

*

The Prime Minister can consider himself very lucky to have won this case.

Once can quite imagine a differently constituted court (or the Court of Appeal) taking a harder view against the Prime Minister

The FDA, in turn, are right to aver the following:

“The High Court has decided:

 – That the prohibition on bullying, discrimination and harassment in the Ministerial Code is justiciable in the Courts.

– That the Prime Minister must correctly apply those concepts when determining complaints against ministers.

– That it is not an excuse for bullying under the Code that a minister does not intend or is not aware of the upset and distress caused by their actions.

“These findings vindicate the claim brought by the FDA and represent a clear rejection of the idea that there are different standards for ministers than for civil servants. The FDA is applying for its full costs of the claim to be paid by the government.

“In an unexpected development, the Court also found that the Prime Minister had not acquitted the Home Secretary of bullying in his decision in November 2020. The Court has held that the Prime Minister must have accepted the advice of Sir Alex Allan that the Home Secretary had engaged in bullying (or at least that he did not reach any concluded view on the matter).”

*

Whichever government lawyer drafted the conclusions of the Prime Minister ultimately won this case for the government.

A more clumsily worded statement would have meant that even this court would have decided in favour of the FDA.

The government won – just about.

But now there is a High Court decision holding that determinations of the Ministerial Code are justiciable and that the Prime Minister must act properly in applying the Code to particular cases.

The case was also decided on the bases that the Home Secretary was not exonerated of the allegations and that the lack of intention did not mean it was not bullying.

The FDA must be tempted to have one more heave – and to take this to the Court of Appeal (though there would be a risk that it could lose the gains it has made).

The government is in the harder appeal position – for it can hardly appeal a case which it has ‘won’ and so it is stuck (for now, unless the FDA appeals) with the finding of justiciability and other points made by the court.

So this is a good example of a case which both sides can be seen to have lost – but one in which both sides can also be seen as having won.

And the more significant victory, for transparency and accountability, is that of the FDA.

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Abortion, law and policy – why there needs to be a constitutional amendment

2nd December 2021

The abortion issue is about one ultimate question: who gets to choose?

Is it those who are pregnant?

Or is it those who have control of a legislature or the courtrooms?

From a liberal perspective, the answer is simple.

As far as possible, those who are pregnant should have the choice to decide to terminate or not terminate their pregnancies.

This is because of the principle of autonomy.

But many do not want women to have that choice: they believe it is a choice for others to make, who do not know the woman or her circumstances.

Answering this ultimate question, however, is not enough.

For there is a further question: how should the right of someone to control their own pregnancy be enforced?

In the United States, the Supreme Court in Roe v Wade held that there was a ‘constitutional right’ to an abortion.

The problem with this is that the constitution of the United States does not expressly provide such a right.

It instead has to be read into the constitution by the courts.

And what a court can give, another court can take away.

Another problem is that the reasoning in Roe v Wade is not that compelling – even it arrives at the (morally) right conclusion.

So there is now a case before the Supreme Court where there is a very real chance that Roe v Wade will be severely limited, if not overturned.

This would be an illiberal and unfortunate outcome.

*

For nearly fifty years, however, the effect of Roe v Wade has not been converted into an actual constitutional amendment, so as to put the ‘constitutional right’ beyond doubt.

And those opposed to abortion have, step by step, judicial appointment by judicial appointment, increasingly positioned themselves to overturn the decision.

It has been skilfully, deftly done – and in plain sight.

The judicial appointments under presidency of Donald Trump has made the shift irreversible for at least generation.

The only liberal way forward is not to litigate, but to legislate.

The ‘constitutional right’ of a woman to, as far as possible, decide the outcome of her own pregnancy is too important to rest on a flimsy Supreme Court decision, with poor reasoning and relying on a right not expressly set out in the constitution.

And if and when the constitution expressly sets out the right, then the decision as to who gets to decide whether to terminate a pregnancy will be, as afar as possible, back with who it should be.

The mother herself.

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Yes, the quality of the administration of Boris Johnson is poor, but it is also symptom of our constitutional weaknesses

28th November 2021

The primary political problem – and thereby the primary policy problem – with the current government is, of course, the Prime Minister.

As this blog averred two days ago, there is no policy predicament so bad that it cannot be made worse by his intervention.

That the Prime Minister is at the centre of the government’s political and policy problems is well explained today by Adam Bienkov.

*

But.

From the constitutionalist perspective, the significance of Boris Johnson’s premiership is not really about him, but about what he can or seeks to get away with.

For Johnson is the politician supreme – an outstanding politician: in obtaining power, in holding on to power, and in evading any responsibility for how he exercises (and does not exercise) his power.

(For those to about to reply demurring from that last proposition, please note that it is not a compliment.)

Johnson is Prime Minister, and his opponents are not.

And Johnson’s premiership is a practical exercise in showing the weaknesses of the constitution – so much so that, like Margaret Thatcher and Tony Blair before him, he is more likely to be brought down by hubris than by any formal constitutional mechanism.

The weaknesses are, for examples, that a Brexit was done but without any proper scrutiny of the the withdrawal agreement; that similarly Covid law and policy has been and continues to be implemented without any proper scrutiny or accountability; that we have weekly shoddy policy making at the highest level leading in turn to weekly u-turns and chaos; that we have a minister of state conducting an erratic and shouty Brexit policy and playing with Northern Ireland’s future without any obvious cabinet interest or concern; and so on.

The manifold manifest failures of the current administration are not just the failures of one arch-politician, they are also systemic and structural.

Different parts of our constitutional arrangements are not doing their job.

And then when we look at how freely Johnson’s government is seeking to frustrate, circumvent or simply abolish any check and balance – from judicial review to the Electoral Commission – then you see further systemic and structural weaknesses.

‘The poor quality of the Johnson administration is not a bug, but a feature’, observes Bienkov correctly.

Yet Johnson’s premiership is, in turn, a symptom of our weak constitutional arrangements.

*

At this point in this sort of discussion there will be a Pavlovian reaction that this means that we should have a written (that is codified) constitution.

But that would not necessarily help.

First, given the doctrine of parliamentary supremacy there is no way that a codified constitution can be put in place so that it is safe from easy amendment or repeal.

Second, a codified constitution can be illiberal as well as liberal, and any general code put in place in the current charged authoritarian political environment may well be less welcome than the current situation.

What is needed is not so much a new constitution, but for constitutionalism to be taken seriously.

Constitutionalism is the notion that there are political rules more important than any political expediency.

There are also a range of discrete statutory improvements that can and should be made – such as: dealing with the appointment to the House of Lords, reducing the scope of unscrutinised delegated legislation, placing the remainder of the royal prerogative on a statutory basis, and so on.

Perhaps even electoral reform – though that, like a codified constitution, is not necessarily a liberal panacea.

But, on any basis, the constitution does need to be Johnson-proofed, for the next politician supreme to get almost absolute power in the United Kingdom may not be as sloppy a buffoon as Johnson.

And there is little in the constitution to stop them.

Johnson’s premiership may be dreadful in and of itself, but it also a warning.

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