Category: Constitutional Law

Happy 300th birthday, office of the Prime Minister – or is it?

3rd April 2021

Happy birthday, office of the prime minister.

Well, almost.

The office of the prime minister was not invented in one sudden moment.

The term ‘prime minister’ came to be used generally over time to describe the main minster of the crown, and who was answerable to parliament.

For a long time, the office of prime minister was invisible to our constitutional law.

The first time it was used in a formal instrument was, we are told, when Benjamin Disraeli signed the treaty of Berlin in 1878.

Even in the twentieth century it hardly left a trace on the statute book.

And this gives us an insight in to the strengths and weaknesses of the position.

In constitutional theory, the power of a prime minister derives – ahem, primarily – from two sources.

First, the prime minister has powers derived from the royal prerogative – the fiction being that the prime minister exercises those powers on behalf of the crown.

Second, the prime minister has powers derived from commanding a majority in the house of commons – and thereby control over finance legislation.

The prime minister’s power rests thereby on two constitutional stools.

What the prime minister does not have – at least not formally – is his or her own explicit constitutional centre of gravity.

Almost everything a prime minister can and cannot do ultimately comes from, in theory, either the crown or parliament.

This, in turn, means that the office is difficult to ‘reform’ – for as there are almost no legal instruments that set out the powers of the prime minister, there is no text to amend or replace.

It would be like trying to net a constitutional ghost.

It also means that the office can be as powerful and as weak as personalties and circumstances allow – you would not be able to tell just from constitutional law alone why certain prime ministers are strong or otherwise, and how certain prime ministers lose power.

For explanations for why, for example, Margaret Thatcher and Tony Blair both left office despite winning three general elections each you will have to look at books about politics and not about constitutional law.

And so what we are celebrating is not so much three hundred years of an office but a lack of a defined office, but one at the centre of practical political power.

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The problem with the United Kingdom is not a lack of a ‘written constitution’ but the lack of constitutionalism

30th March 2021

This is just a quick post to draw together a couple of points in my law and policy commentary that appear to some people to be contradictory.

On one hand, this blog and my commentary elsewhere relentlessly point out the constitutional failings and trespasses of this government – especially the propensity of current ministers to evade or remove checks and balances.

On the other hand, I am not a fan of a codified constitution (popularly though misleadingly called a ‘written constitution’) and can indeed be quite dismissive of those who contend it is a panacea for our political ills.

How can I be one and not the other?

Usually my first response is to aver that any written constitution would be more likely than not to entrench executive power – especially one which was introduced while the government had a high parliamentary majority.

But there is a second reason which I should perhaps emphasise more – especially when the knee-jerk accusation is that any legal commentator is legalistic – and that is that there needs to be a change in political culture.

‘Constitutionalism’ means taking constitutional rules and principles seriously in any given political circumstance – that things should be done or not done in a certain way because constitutional rules and principles matter in and of themselves.

One can have constitutionalism within a political system without a codified constitution – indeed the lack of codification arguable makes the following of basic constitutional precepts more important in political action.

And in the United Kingdom, there have been constitutionalist politicians in all parties.

The merit of constitutionalism is an acceptance and appreciation that there will be tensions between the elements of the state and that there are certain ways in which these tensions can and should be addressed before they harden into conflicts.

Without the political culture of constitutionalism, however, there is no point in having grand words in a codified constitution.

In the current politics of tribalism and hyper-partisanship – especially where the government wishes to eliminate all checks and balances – what is needed more than ever is a sense of constitutional propriety.

Some may aver that constitutionalism would be a happy consequence of a codified constitution – though the recent example of President Trump in America perhaps indicates that even with codified constitution there can be rampant anti-constitutionalism.

The revival and promotion of constitutionalism, however, would require political leadership –  for leading politicians to insist there are principles and rules that are distinct from the partisan self-interest.

And writing in early 2021, such a shift in political culture seems as remote as any codification.

***

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Why Ministers are less practically accountable than Judges – and how the accountability gap is the most fundamental problem in United Kingdom government and politics

29th March 2021

Many will have Very Strong Opinions about the basic ills in the United Kingdom political system.

Some will point to individual politicians (Thatcher, Blair, Johnson, Corbyn, Farage etc) or political parties (Tories!).

Others will point to political ideas (Brexit, Remain, Centrism, neo-liberalism, ‘woke’-ism).

A minority will aver that there are structural failures – unelected head of state or upper chamber, the lack of proportional representation, and so on.

Perhaps these views are correct, but the more I write about the law and policy of the United Kingdom, the more there seems one particular fault in the conduct of public public affairs.

Accountability.

It is almost impossible – in practical terms – to hold many with executive power to account.

Of course, there is constitutional theory – such as the supposition that ministers are accountable to parliament.

But even typing or saying that  feels artificial if not ridiculous.

Ministers routinely avoid saying things to parliament and, if they do, they are adept at saying untrue, or misleading, or incomplete things.

And there is no real sanction if a minister does mislead or disregard parliament.

That ministers are accountable to parliament is not so much a constitutional principle, but a lack of a principle.

It is a rhetorical cloak that hides the lack of any real accountability.

Contrast with, say, judges.

A judge has to give reasons for their decision – and those decisions must explain why they took that decision and not any other decision; the decisions of judges can be appealed or reviewed by other courts; and the law applied by a judge can be changed.

You may sneer at judges in their (daft) robes and wigs, but they are practically day-to-day accountable in at least three ways.

Ministers, in contrast, do not need to have reasons that add up for most of their decisions; they are free from having those decisions properly scrutinised by their political peers; and there is no real limit to what they can legislate if they are so minded.

And apart from the remote possibility of a legal challenge, or an eventual general election, they are safe from actual accountability.

There are various causes of this:

– the elective dictatorship of parliament, where the government also has control of the elected part of the legislature, is a primary cause;

– the lack (with a few notable exceptions) of a press that is geared to holding ministers to account rather than being a means of transmission of information from/about the government to the public;

– the hold that political parties continue to have in the recruitment and promotion of candidates;

– our tribal and increasingly hyper-partisan political culture;

– the increasing lack of care of voters about being lied to by ministers – for, as this blog has previously averred, there is no practical point exposing the lies of ministers if people do not mind being lied to; and

– the absence – despite the Very Strong Opinions of constitutional hobbyists – of a consensus for what alternative constitutional arrangements would be an improvement.

(‘We demand a written constitution’ say those who rarely then explain how a written constitution would not just be an opportunity by the executive to entrench its own power.)

An index of how weak our constitution is in respect of accountability is how, when things go wrong, it is customary to demand a public inquiry.

For if our constitutional worked well in respect of accountability then there would be proper scrutiny at the time – and public inquiries would be an exceptional event.

Mere exposure of problems is not enough – indeed, few of those who think anything about our public affairs will be unaware of many of the problems.

It is instead an everyday failure to get ministers to engage with those problems, to explain what went wrong and to say how the problems can be addressed – the very stuff of accountability.

So many things in our political system now point away from this lack of accountability being fixed quickly.

And so the accountability gap widens and widens.

Brace, brace.

***

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‘We are not public servants’ and ‘policing by consent is not a duty’ – the disturbing and telling views of a police officer

27th March 2021

Here is a tweet.

The tweet purports to be from the chair of the Gloucestershire branch of the Police Federation.

This description must be true, because a tweet from that account was RTd just hours before by the account of the Gloucestershire Police Federation – and it can be assumed that they would not RT an imposter.

And that, in turn, is the account of the Gloucestershire Police Federation as it is directly linked to at their website (top right).

So, yes, it is a real tweet.

A real tweet by a real chair of a real police federation.

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Having established the tweet’s authenticity, let us now look at its content.

The tweet states that the police are not public servants.

More exactly that ‘technically’ the police are not public servants.

As there is no ‘technical’ definition of the term ‘public servant’ this is a nonsense.

That a police constable is a servant of the crown – as are many civil servants – does not mean that they are also not public servants.

Crown servants – and others employed by the state in whatever legal form – are public servants.

Now look at the context of the tweet – it is intended as a correction in reply to a fair comment that the police should serve the public, not the government.

The reply denies that this is the case.

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But not only does this tweet deny that the police are public servants – it also frames the concept of ‘policing by consent’ as a ‘general principle’ but not a ‘duty’.

Here the tweeter errs again.

If one actually reads the once-famous Peelite principles of policing, you will see this as the second principle:

‘To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect.’

Indeed, each of the principles is set out as an express ‘instruction’ to constables: ‘to recognise’, ‘to maintain’, ‘to use’ and so on.

As such each of the principles is also a duty – and this is because – ahem, technically – a duty can also be a principle, and vice versa.

Especially when they are expressly framed as such, as they are in that formal definition of ‘policing by consent’.

But for our tweeter, these express instructions can be defined out of from having any actual application because they are only ‘principles’.

This, like the tweeter’s other distinction, is itself worrying and telling.

Policing by consent is not an optional nice-to-have in modern society – it is foundational.

That it can be expressly stated to not be a duty – notwithstanding the actual words of the instructions – is a disturbing insight.

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Perhaps the tweet was a just a slip, not to be taken seriously.

(Though, remember the police themselves are often not so forgiving of the slips of others.)

Perhaps there will be a clarification, or something.

Or perhaps the tweets provided an indication – an insight – into a mindset of certain police officers.

That not being public servants and that not policing by consent are both a quick distinction away from having practical application in the discharge of their important role in our society.

***

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You say you want a ‘written constitution’? Here are four online places where it is already written down.

26th March 2021

Whenever a constitutional wrong becomes apparent there is a reflexive demand for a ‘written [or codified] constitution’.

Having a written constitution, it would seem, would just make things better  – rather than, as is my view, probably make things just as bad but differently.

(On my scepticism about written constitutions as a panacea see my Prospect piece.)

But this post comes at the topic from a different angle.

Those who demand a written constitution often seem unaware that it is already set out in writing – if you know where to look.

And just as those who wish for a month of Sundays usually do not know what to do with a spare afternoon, those who pine for a written constitution do not read where the constitution is already set out in writing.

Here are four places where you can read the constitution of the United Kingdom online which you may or may not already now about.

Note, however, that each of these are practical rather than academic or theoretical materials.

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The first is the Cabinet Manual – which governments (of all parties) since 2010 have averred sets ‘out the main laws, rules and conventions affecting the conduct and operation of government’.

Of course, this is the government’s own view of the constitutional arrangements in which it operates – but it also is a comprehensive and clear overview of how the various elements of state are at least supposed to fit together.

You can click and read the pdf here.

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So much for the ‘high level’ constitutional summary – now we turn to how public bodies make (or should make) decisions.

Here we have a wonderful publication published for government lawyers called ‘the Judge over your shoulder’ – which is described formally as ‘guidance to help you understand the legal environment in which government decisions are made and assess the impact of legal risk’ – and is described informally as pretty much a god-send.

This publication set out how decisions and actions by public bodies can be rendered ‘judge-proof’ – that is lawful – and it is updated from time to time.

You can click and read the pdf here.

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We move on now from the executive to the legislature, that is parliament.

The key text for understanding what parliament can and cannot do – and the text of which can make a real difference at important political moments – is known as “Erskine May’.

More formally ‘a treatise on the law, privileges, proceedings and usage of parliament’ – this document was for a long time (indeed for far too long) only available to those who knew of its existence and could afford the prohibitive hundreds of pounds that it cost to purchase in hard form.

Such inaccessibility was an outrage – and so it was a boon when the entire text was placed online.

You can click and read it here.

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And now, finally to the judiciary.

In particular to the the power of the courts to review (and sometimes quash) both government decisions and even statutory instruments made under acts of parliament (but not the acts of parliament itself).

The ‘Judge over your shoulder’ gives the government’s view – but to see it from the perspective of the courts (of England and Wales) you need to know about ‘Part 54’ of the civil procedure rules – and its attendant practice direction.

This is, of course, written in legalese – but they also provide an understanding of how the courts would go about holding the other elements of the state to account.

A grasp of what it actually means when you read that ‘the government has been taken to be court’ is invaluable to anyone following the tensions between ministers (and other public officials) and the judges.

You can read Part 54 here and its attendant practice direction here.

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Of course, these are not a substitute for a codified constitution – but they do set out in writing what – at least – should happen in the constitutional affairs.

Enjoy clicking and reading.

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Why the Deloitte clause for drafting ministerial answers is a further assault on civil service norms

25th March 2021

One of the marvels of modern story telling is, of course, Bagpuss.

And one of the most instructive stories of Bagpuss is The Mouse Mill, where the mice devise and construct a mill for the provision of chocolate biscuits.

[Spoiler warning for episode eight of Bagpuss.]

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*

The mice, however, are not making the chocolate biscuits out of butterbeans and breadcrumbs as they aver.

They are instead simply recycling chocolate biscuits, thereby controlling both ends of a supply chain.

Until now, the mice’s chocolate biscuit factory was perhaps the most ingenious method yet conceived of having it both ways in the provision of a good or a service.

But now we have the Deloitte contract for track-and-trace, where they appear to be able to answer parliamentary questions and freedom of information requests about their very own services.

*

Over at the Huffington Post, the experienced and well-regarded political journalist Paul Waugh has disclosed that Deloitte are drafting the answers to parliamentary questions in respect of matters for which Deloitte are providing the government with services.

I have not seen the contracts, but on the safe assumption that Waugh is a reliable news source, we can trust the following report (emphasis added):

‘Four different contracts show that Test and Trace has been using Deloitte for “general management consultancy services” ranging from building testing capacity to stockpiling and logistics oversight.

‘But buried within the contracts are details of help provided with PR and communications, with a requirement to “draft and respond to parliamentary questions, Freedom of Information requests, media queries and other reactive requests” and to “support lines to take and Q&A’s in anticipation of queries”.’

*

You do not need to have suffered years of experience with government contracts to know that legalese here quoted by Waugh rings true.

It is certainly not the sort of wording anyone would invent – and so it is no doubt the case that this is an actual contractual provision.

And the legalese is precise – crucially the contractual wording is not about simply providing the information that would allow the civil servants to draft and respond to parliamentary questions and freedom of information requests.

Had that been the purpose and intention of that contractual provision, then that is what the provision would have said.

Instead the parties chose to use wording where the external provider is obliged to draft and respond – and not the civil servants.

As you will see, this detail matters when we come to the government’s rejoinder.

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As Gemma Abbott, legal director of the Good Law Project, is quoted as saying:

‘We have a government so addicted to outsourcing that it has even outsourced being held to account.

‘If a member of the public submits an FOI request, or an MP asks a parliamentary question about the government spending millions on contracts with Deloitte, it seems that it’s Deloitte at the other end marking its own homework – it is beyond parody.’

Her point is well made.

*

‘…the mice put breadcrumbs and butterbeans in the top, and they work the mill, and out come the chocolate biscuits…’

– Bagpuss

‘Impossible, impossible, it isn’t true. I am going round the back to what is happening’

– Professor Yaffle

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There is, of course, nothing wrong with any consultancy firm providing services to the government – and, indeed, there is an advantage to certain tasks being allocated to external professional advisers and service providers.

But there are certain tasks which should not be contracted-out and outsourced.

The problem here is not with Deloitte offering to provide the service of providing answers to parliamentary questions and freedom of information requests – for they are a provider of services – but the agreement of the government that this job be undertaken by external providers.

The real culpability lies with the government.

The effect of the transaction is that a service provider will be responsible for providing “draft[s] and respon[ses] to parliamentary questions, Freedom of Information requests, media queries and other reactive requests” about their very own services.

This cannot be right in principle.

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At the end of the Huffington Post story there is a rejoinder from the government:

‘The government employs contractors in the same vein that private businesses do and responsibility for answering parliamentary questions, freedom of information requests and media enquiries rests firmly with a team of civil service communications professionals within the Department of Health and Social Care. Every single response is subject to the highest levels of scrutiny to ensure they are both factual and detailed.’

If this was the case, then it is difficult (if not impossible) to explain the legalese quoted in the news report.

Either the contractual wording sets out the true intention of the government or that press statement does – both cannot be (equally) true.

And if the government’s rejoinder is true, then the legal drafting quoted in the news report would (and could) have been different.

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Why does this matter?

The constitutional significance of this is set out well in a thread by Alex Thomas of the Institute of Government:

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So the contractual provisions – and presumably the services performed thereunder – are an assault on the norms of the civil service.

Another assault, to go with all the others.

This one, however, does not seem especially directed or deliberate – just a shrug and a signing of some contracts.

We do not even get the glamour of a chocolate factory, or the elusive near-satisfaction of chocolate biscuits being procured only to then be taken away.

The government should not sign any further contracts with the wording of this clause.

There should, of course, be a contractual obligation on service providers to assist the government in respect of freedom of information requests and parliamentary questions and to provide necessary information.

But contracting to provide the service of ‘drafting and responding’ is a significant step too far.

Having control of both ends of the line of accountability is inappropriate – a service provider to the government should not be ‘drafting and responding’ to queries about that service.

One should not be able to both have a chocolate biscuit and to eat it. 

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Declaration: I was a central government lawyer 2003-2005 dealing with freedom of information requests on central government commercial matters.

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The performative nastiness of the Home Secretary

24th March 2021

The office of home secretary is one that often does not bring the best out of its occupants.

Indeed, for a while the phrase ‘former Labour home secretary’ was one of the most illiberal phrases in the political lexicon.

Once could think of exceptions – Roy Jenkins, of course, and to a limited extent William Whitelaw and Douglas Hurd (though the latter two only seem more ‘liberal’ by comparison).

On the whole, however, just as certain experiences bring out the worst in human nature, being home secretary can bring out the worst in any politician.

But.

At least former home secretaries had the grace to pretend otherwise.

Remember the grave sorrowful face of, say, Jack Straw as he solemnly warned of the need of some ‘tough new measures’ – enticing you to nod-along with his sense of national emergency.

And Theresa May as home secretary even once stunned the police federation with a full-on speech about police reform.

In essence: the home office was a tough-old job, but some politician had to do it.

But what home secretaries did not do – at least not in public – is revel in the capacity of the office to cause harm and upset.

And so we come to the current home secretary.

Today’s news is typical of their approach:

Before May was home secretary there was a famous conference speech – framed in cautionary terms – about the Conservative Party becoming the ‘Nasty Party’.

For the current home secretary that speech has instead become a manifesto.

And as someone has averred on Twitter, this is not exceptional to the United Kingdom:

The Cruelty Is The Point.

(See here.)

What an unpleasant vista this is on our current politics.

The important thing to note, however, is not so much (yet) that the powers and objectives of the home office have profoundly changed.

These are just about the sort of policies that other home secretaries may have adopted – and not only Conservative politicians.

What seems novel (at least to me) is the sheer glee which accompanies the announcement and promotion of each policy announcement.

One shudders to think what the current home secretary would do publicly if the office still have the power to (not) commute a death penalty.

And rhetorical change can have substantial consequences: each great office of state is subject to and can shape public expectations – that the chancellor, for example, can and will do things in respect of the economy generally, and with taxation and spending in particular.

The more the home office is loudly deployed as a vehicle for nasty policies, presumably the more the demand for more such policies.

And so the approach of the current home secretary cannot be written-off as just vile verbiage: it may and perhaps will lead to more repressive policies.

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All this is an example of a more general problem with the current political arrangements of the United Kingdom.

The lack of political and constitutional self-restraint – and the removal of the gate-keepers.

There has never really been anything before – other than custom and decency – that has prevented a home secretary exploiting their office in this way.

Just as there was nothing which stopped the prime minister from using the prerogative powers in various unfortunate and unwise ways.

What the home secretary and some other ministers are now doing is showing openly what the constitution of the United Kingdom has long been capable of permitting.

And so what is demonstrated by this exercise of performative politics is not just the politics of the current home secretary – but that there is nothing in place that can prevent such things.

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Union Jacks being placed indoors in politicians’ offices is a constitutional distress signal

23rd March 2021

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“They’re selling hippy wigs in Woolworths.”

– overheard in Camden Town, 1969

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In thirty-five years of reading and writing about the constitutional history of the United Kingdom I have never given a second thought to the Union Jack (or Union Flag).

To the extent I thought about flags at all, I just had a vague notion that they were things which people in other countries had – like the fact they put their country names on postage stamps while the Royal Mail does not.

It was not so much that I felt strongly against a flag – I just did not really think about it at all.

And now it seems to be the most potent political issue of our age.

It is all very strange.

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Let us start with the law providing that the Union Jack is our national flag.

There is no law providing the Union Jack is our national flag.

Indeed, it seems there was doubt that the Union Jack was our national flag until the early twentieth century.

Here is a revealing exchange between three earls in the house of lords in 1908:

From that exchange we can infer that in the Victorian period the Union Jack was not regarded widely as the national flag – else there would be no need for such a debate and clarification in 1908.

So it may not even be Victorian nostalgia – but something of which has only been a big thing for a hundred years or so.

Another ‘invention of tradition’ as some historians would say.

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There are two things, however, which one must know about the Union Jack.

The first is that some people will have Very Strong Opinions on whether it is called a Union Jack or a Union Flag – though those three earls of the realm were quite at ease calling it a jack.

The second is that the same people are also likely to have Very Strong Opinions on which way up the flag should be flown.

This blog does not have such strong opinions.

But the one thing which seems to be overlooked in the current heated political controversy about flags is that, well, they are supposed to be flown outside – on land or at sea.

That is the point of a flag, if you think about it.

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To have political arguments about flags in indoor rooms seems, on this basis, to be rather weird.

It is like having a row about closed umbrellas.

Our ancestors did not give us much guidance about the Union Jacks being indoors as political props, as it may not have occurred to them that a flag would ever be used for such a purpose.

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That said, there is some trace of flags in our legislation.

In schedule 1 of the grandly titled Town and Country Planning (Control of Advertisements) (England) Regulations 2007, there is this provision for things that do not need consent:

But nothing about flags inside.

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This lack of any formal recognition of a national flag is not surprising in those often casual arrangement that we describe as the constitution of the United Kingdom.

A thing can be – and presumably cease to be – a national flag without any legislative intervention.

A thing can become official in an unofficial way.

Whether this relaxed approach will continue in this age of hyper-partisanship and performative nationalism is unlikely.

One can quite imagine a new act of parliament ‘enshrining’ the Union Jack as our national flag, with ‘tough new offences’ to ‘crack down’ on disrespect.

One wonders how we managed so far.

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The timing of this phenomenon is telling.

By reason of Brexit, there is a non-trivial likelihood that there will be Irish unification and maybe also Scottish independence in the next few years.

So there is a real risk that two of the crosses on the Union Jack will soon not be there if the flag were ever to be adjusted for accuracy.

(Though one can quite imagine England carrying on with the Union Jack even with the loss of Northern Ireland and Scotland – like those pop bands that still tour with just one original member.)

And although it is easy to mock this flag-showery, it is not without political purchase, as my wise Financial Times colleague Robert Shrimsley avers:

But taking this sensible warning seriously, there still seems symbolism in this, well, symbolism.

Lore tells us that a Union Jack flown upside down was a sign of distress.

It is almost as if the current prevalence of indoor Union Jacks – upside down or otherwise – is itself a distress signal – and one for the future of the Union.

Brace, brace.

***

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

22nd June 2021

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

Who could possibly disagree?

Well – certainly not this blog, in principle.

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

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Yet.

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

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

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

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

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

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

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But.

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

Some constitutional abominations are too awful to be tolerated.

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

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

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

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

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

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

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

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

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

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

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And luckily, there has actually been a useful review.

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

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

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

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

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

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The Clown and the Constitution

21st March 2021

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

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

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

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

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

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

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

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

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

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

And so on.

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

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

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

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

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

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

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

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

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

The other challenge, however, is squarely constitutional.

And that is the future of the union.

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

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

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

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

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

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

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

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

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

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

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

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

Slapping sticks is perhaps all that is left.

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All this said: never underestimate the trickster.

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

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

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

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

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

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

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

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

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

 

***

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