Category: Constitutional Law

The sordid return of ‘the will of the people’

10th September 2021

This government is abandoning manifesto commitment after manifesto commitment.

This is notwithstanding that, in a representative parliamentary democracy, it is only by manifestos that we have anything that approximates to mandates for a majority party returned in a general election.

Such manifesto commitments are not, it seems, binding commitments on the government.

But.

Elsewhere in government, the ‘will of the people’ is being invoked – and perhaps in the mist sordid and disgusting way imaginable to any any sensible and humane person:

Because of this policy, fellow human beings will die.

There will be those who will be dead tomorrow who otherwise would not be dead but for this policy.

This policy is not in any manifesto.

The invocation of ‘it is what people want’ is nothing more compelling than speculation.

But it is enough.

Because ‘it is what people want’ then other people will die.

This is a ‘pick and choose’ approach to representative democracy.

Things that had been explicit in a manifesto on which people people had actually voted are casually discarded.

And by reason of the slogan ‘it is what people want’ lives of fellow human beings will be just as casually discarded.

The common feature is executive arrogance.

Ministers believe they can do as they wish to anyone, regardless of actual mandates.

This does not mean well for our democracy.

Brace brace.

**

Hello there –  if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

Please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

Why ‘legally ringfenced’ is a phrase used by political knaves to take you for a fool

7th September 2021

Another late-night revelation about our current government-by-essay-crisis:

The phrase ‘legally ringfenced’ is a legal and political nonsense.

It is a legal nonsense because nothing in the United Kingdom can, in any meaningful way, be ‘legally ringfenced’ .

This is because of the doctrine of parliamentary supremacy, which means a parliament can make or unmake any act of parliament.

Nothing – to use a similar dishonest phrase – can be ‘enshrined in law’.

Even if there were a provision put in a statute – with super-duper protections intended to prevent its repeal or amendment – the provision and all those super-duper protections could be repealed or amended with a simple parliamentary majority.

And it is a political nonsense for it is a trick that that has been played before and which has been exposed as trick before.

The international aid budget was, supposedly, legally ringfenced.

The fixed-term parliaments act was, supposedly, enshrined in law.

The current triple-lock on pensions likewise, and so on.

And so on.

But still politicians use this trickery – and still too many nod-along by these impressive sounding phrases.

The claims ‘legally ringfenced’ and ‘enshrined in law’ do have a rhetorical purpose, of course.

They invoke the majesty of law to charge up what would otherwise be a banal political utterance.

An utterance intended to reassure waverers or even win over somebody who would otherwise be opposed.

And in that way, it is perhaps slightly significant that politicians still feel law has sufficient respect so that political statements can be framed as grand legal announcements.

But it is trickery all the same.

Any politician who uses the phrases ‘legally ringfenced’ and ‘enshrined in law’ is a knave – and a knave taking you to be a fool.

**

Hello there –  if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

Please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

To Brexit and back again: how political ‘mandates’ have returned to meaning nothing

6th September 2021

Long ago, before 2016, ‘mandates’ were not taken that serious in the politics of the United Kingdom.

To the extent that a mandate from a general election made any constitutional difference, it meant that in practice (and by convention) the house of lords would not block anything that had been in a manifesto of the majority house of commons party.

There certainly was not any firm obligation on the government to bring each manifesto commitment to the floor of the house of commons, let alone pass any legislation.

And from time to time – for example, with the poll tax (‘community charge’) endorsed in the 1987 general election – a government will reverse a policy contained in a manifesto within the same parliament.

Because, long ago, mandates were seen as weak things in our representative, parliamentary democracy

And then.

And then came the 2016 referendum on membership of the European Union, which had a small though clear majority in favour.

This result – in a non-binding referendum – became ‘the will of the people’.

The result was a mandate that no person or institution would be allowed to gainsay.

If senior judges said that there needed an act of parliament for the Brexit notification to be made, they were howled at as ‘enemies of the people’.

Members of parliament opposed to the departure were similarly denounced.

An electoral mandate was no longer a weak thing.

The mandate was the strongest thing in politics.

A force so strong that nothing could stand in its way.

And then.

The United Kingdom departed from the European Union.

Now, the same government that insisted that ‘the will of the people’ was absolute is now seeking to renege on its manifesto commitments.

The international aid budget has been cut, and it looks like the ‘triple lock’ commitment and tax commitment are both going, perhaps this week.

The government no longer cares that much about mandates.

The government no longer cares about the will of the people as expressed through a ballot box.

Mandates are weak things again.

It has been a strange few years, politically.

**

Hello there – please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.

If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

Looking at today’s select committee hearing as a practical exercise in holding the foreign secretary to account

1st September 2021

The word ‘accountability’ in a political context means that a person with political power is required to give, well, an account of what they do and do not do.

This in turn means that exercises in political theatre – such as dramatic resignations and sackings, or prime minister’s questions, and so on – are not examples of political accountability.

Indeed, they can often be a substitute for the minister explaining about what happened on their watch.

And general elections are not an exercise in practical accountability: even taking the electoral system into account, parties campaign on broad manifestoes and are not obliged to fulfil and mandate if elected.

The nearest we have in the United Kingdom parliament at Westminster to the means of practical political accountability are select committee hearings.

Earlier today there was one such select committee hearing – the foreign affairs committee session with the foreign secretary Dominic Raab.

And to a certain extent this worked as an exercise in accountability: some further information was provided as to the circumstances of the evacuation from Afghanistan.

But rather than providing a full account of what happened, the foreign secretary often seemed uninformed and unaware, and he sought to hide behind long discursive answers unrelated to the questions asked.

Of course: by showing the vacuity of the foreign secretary the session was an exercise in political transparency, if not in accountability.

But there was nothing the committee could do – at least in the session – to require the foreign secretary to give a more complete and direct account of what happened.

And the session was not long – about an hour or so.

Yet this is the best we will get – the foreign secretary is now safe again from being probed closely as to what happened and did not happen.

We will return to ‘politics as normal’.

Perhaps one day, some earnest public inquiry will piece together a fuller account of what happened with Afghanistan.

And the time there is account, the relevant politicians will have long gone from being held to that account.

****

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

Was the ‘surveillance state’ a price worth paying?

 

30th August 2021

Over at the Foreign Affairs journal is this fascinating, well-argued article:

From a liberal perspective, there are parts of the piece that are both convincing – and disturbing.

For example, the author Thomas Hegghammer avers that not only is the west better resourced:

‘Western governments have also proved to be less scrupulous about preserving civil rights than many expected in the early years of the war on terrorism. When faced with security threats on their own soil, most Western states bent or broke their own rules and neglected to live up to their self-professed liberal ideals.’

The gist of this seems true – and what is disturbing for the liberal is that it may well have been a ‘price worth paying’.

Hegghammer amplifies this point in respect of privacy laws and the surveillance state:

‘The reason information technology empowers the state over time is that rebellion is a battle for information, and states can exploit new technology on a scale that small groups cannot. The computer allowed states to accumulate more information about their citizens, and the Internet enabled faster sharing of that information across institutions and countries. Gadgets such as the credit card terminal and the smartphone allowed authorities to peer deeper and deeper into people’s lives. I sometimes serve as an expert witness in terrorism trials and get to see what the police have collected on suspects. What I have learned is that once the surveillance state targets someone, that person no longer retains even a sliver of genuine privacy.’

*

Hegghammer sets out that surveillance and the disregard for civil liberties are just one element of a general anti-terrorist strategy – alongside techniques, resources, intelligence, and the dynamics of the state-terrorist relationship.

And it is not clear whether it is an essential element.

Had Western governments and their citizens been more mindful (or to critics, precious) about their civil liberties, would it have meant that the other elements of anti-terrorism policy would not have worked so well?

And what would it have practically meant for Western governments to have been more ‘scrupulous about preserving civil rights than many expected in the early years of the war on terrorism’ rather than less?

Most liberals will accept that the state can do all sorts of things for the purpose of anti-terrorism, as long as it has a lawful basis and is subject to democratic and judicial supervision and the principle of proportionality, and it lasts no longer than necessary.

Would such requirements really have hindered the security services in their work?

*

To a certain extent Hegghammer’s argument has a flavour of ‘just so’ story – there is less terrorism now than before, and so what happened between then and now must explain why there is less terrorism.

But that said: Hegghammer’s observation that the state now has access to online information and communications data that makes it difficult-to-impossible to use electronic devices, media and payments for the purposes of organised terrorism is compelling.

However: terrorism, like other forms of human cruelty, adapts.

It may well be that we have not ascertained or imagined how the next generation of terrorists will work out how to be cruel.

But in the meantime: we will still have the surveillance state – and no state voluntary surrenders its powers.

Perhaps that was – and will continue to be – the ‘price worth paying’.

The price was a high one, all the same.

**

Hello there – please do support this sceptical liberal constitutionalist Brexit blog – and do not assume it can keep going without your support.

If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

Ministerial resignations: the ‘Estelle Morris resignation’ vs the ‘Lord Carrington resignation’

29th August 2021

A recent post on this blog set out why one should be sceptical of ministerial resignations – at least as a form of practical political accountability.

Many resignations – and sackings – are political theatre, and they are not instances of political accountability but substitutes for it.

The post averred that resignations still have their place, but that – all other things being equal – such resignations are not really about accountability.

No account ends up being given of how things went wrong, and why.

Instead there is a political CTL+X or CTL+Z and the political typing goes on as before.

*

That said, one famous ministerial resignation was that of Lord Carrington in 1982.

In his letter of resignation, he stated:

‘The Argentine invasion of the Falkland Islands has led to strong criticism in Parliament and the press of the Government’s policy. In my view much of the criticism is unfounded, but I have been responsible for the conduct of the policy.

‘I think it right that I resign.

‘As you know, I have given long and careful thought to this. I warmly appreciate the kindness and support which you showed me on Saturday. But the fact remains that the invasion of the Falkland Islands has been a humiliating affront to this country.’

In his memoirs he stated:

‘The nation feels that there has been a disgrace. Someone must have been to blame. The disgrace must be purged. The person to purge it should be the minister in charge. That was me.’

He is generally regarded as having resigned for not having anticipated the Argentine invasion of the Falklands Islands.

Few historians now blame Carrington – and indeed the minister more responsible for signalling to Argentina that the United Kingdom may have a weak resolve to defending the Falkland Islands was the defence secretary, who stayed in his job.

*

Another resignation, though now less famous, was that of Estelle Morris as education secretary in 2002 – and it one of the most remarkable and refreshing political resignations of modern times.

Her reasoning was startlingly frank:

‘I’m good at dealing with the issues and in communicating to the teaching profession. I am less good at strategic management of a huge department and I am not good at dealing with the modern media. All this has meant that with some of the recent situations I have been involved in, I have not felt I have been as effective as I should be…’

She resigned because she was not in the right job, and she said so.

And good on her – and it would be better if more people with political power were so candid.

*

The current foreign secretary Dominic Raab is criticised in today’s press for failures to engage properly with the issue Afghanistan in the run up to this month’s evacuation.

In particular:

This is a serious charge – perhaps almost the most serious charge that could be made against a foreign secretary.

This is not just getting a foreign policy issue wrong – say, like what was alleged against Carrington – but not even engaging with it in the first place.

This is foreign policy that is not even wrong, in the words from another context of Wolfgang Pauli.

If the charge is correct then Raab cannot even give an account of what he did wrong and why made those errors, as he did not do anything.

He cannot offer any account, for there is no account to be given.

And so there cannot – literally – be accountability.

If he were to now resign in these circumstances, it should be more of an Estelle Morris resignation than a Lord Carrington resignation.

*

And just as resignations and sackings are substitutes (usually) for accountability, another things is stark.

If the newspaper report is accurate, being ‘totally focused on Brexit’ is a substitute for good policy and government.

**

Hello there – please do support this sceptical law and policy Brexit blog – and do not assume it can keep going without your support.

If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

Why the Michigan election law judgment is a Judgment for the Ages

27th August 2021

The primary purpose of a reasoned court judgment is not to be a historical document.

The primary purpose of a reasoned court judgment is for the here-and-now: it is a practical document to explain why the court made a particular order (or did not make an order) or otherwise disposed of the claim or matter before it.

To the extent to which that judgment contains anything of general interest to future generations of historians is (or should be) incidental

Yet.

Every so often there are judgments that you hope will speak to the ages.

Judgments to tell future generations about things in the here-and-now that they may not otherwise understand.

And the judgment handed down recently by Honorable Linda V. Parker of the United States district court for the eastern district of Michigan is such a judgment.

It is a judgment for the ages.

It is a judgment that (one hopes) will tell future generations that the American courts of our time had not gone completely mad.

It is a long judgment – but once you start reading it is compelling, and you are well into it before you realise.

The first paragraph is itself a banger:

And then it gets better, and better.

In essence: it sets out in readable detail how pro-Trump attorneys deceived the court again and again, and it sets out why that was again and again wrong.

The flavour of the judgment can be gained in this outstanding Twitter thread:

Click on and read the judgment here – and (if it is the right word) enjoy.

**

Hello there – please do support this liberal and constitutionalist blog – and do not assume it can keep going without your support.

If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

The ‘benefit of hindsight’ is becoming the modern ‘benefit of clergy’ – politics, accountability and rhetoric

25th August 2021

There are various means by which those with political power can evade accountability for what they do and do not do.

(By ‘accountability’ I mean those with political power being obliged to give an account for what they have done and not done.)

One means is by minimising or removing any formal checks and balances within our constitutional arrangements – answering to parliament, the independence of our courts, the effectiveness of judicial review, an impartial civil service, public service broadcasting and so on.

A second means is to disregard informal and non-legal self-restraints within the constitution – to ignore the ‘good chaps’ theory of the constitution, where so much depends on the willing observance of unenforceable conventions and rules of procedure.

A third means is to ensure that any special method of accountability – such as a public inquiry – is as delayed or limited as possible, if it takes place at all – and if it does take place, the ‘lessons learned’ are for another generation of politicians.

And a fourth is by means of rhetoric.

In particular, the increasingly regular occurrence of ministers and political appointees invoking ‘hindsight’.

In the commons, the prime minister responds to explanations of how he could have dealt with foreseeable things in a timely manner – regarding Brexit and other things – with the jibe ‘Captain Hindsight’.

The politically appointed head of the national health service test and trace programme told a parliamentary committee, with a straight face:

‘With the benefit of hindsight the balance between the supply and the demand forecast wasn’t right. Clearly that is true.’

And, now with Afghanistan, we have the foreign secretary explaining why he carried on taking a holiday during the fall of Kabul:

*

Brexit.

COVID-19.

Afghanistan.

*

In most, if not all, of these situations the potential problems were bleedingly obvious in real-time, at the time.

What was required was not hindsight but foresight.

But we now have a group of politicians who have realised they can benefit from a special form of political herd immunity by deriding criticism as ‘hindsight’.

And this, in turn, provides them with a licence to not properly think things through at the time and to take decisions (or not take decisions) for reasons of perceived political expediency.

For they know, in the back of their minds, that when things go wrong all they have to say to critics:

‘…with the benefit of hindsight’.

*

A healthy polity does not greatly depend on formal constitutional instruments – and legalistic words in a document can only make so much difference.

A healthy polity instead depends on issues that can be characterised as ‘cultural’ as well as constitutional – the general sense of what those with political power can get away with.

And, as the very stuff of a political culture is largely words, symbols and communication, when that culture is debased then it becomes significantly more difficult to hold ministers to account.

The ‘benefit of hindsight’ is becoming the modern ‘benefit of clergy’.

If this trend continues, then our polity will be the worse for for it.

And this will not only be obvious with…

…well, hindsight.

**

Hello there – please do support this liberal and constitutionalist blog – and do not assume it can keep going without your support.

If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

 

 

Why ministerial resignations and sackings are often a substitute for genuine accountability for policy failures

22nd August 2021

A couple of days ago the post on this blog was about Dominic Raab and ministerial resignations.

In that post I averred that this clamour for a ministerial resignation tells us three things: that the minister had enemies within government (else the incriminating material would not be available); that the press was not protecting the minister; and that there was sufficient interest from the public for the issue to be subject of so many news reports.

The one thing the clamour did not tell us – at least directly – was whether the minister had actually done anything wrong.

And ministers get things wrong all the time – it is just that the relevant material is not disclosed and/or the press do not join the attack and/or few outside Westminster would be interested.

Accordingly, a sustained clamour for a ministerial resignation will always tend to tell you more about political weakness rather than policy failure.

In essence: a political scandal is a function of having political or media enemies and not of policy incompetence.

Now, I want to develop this point to say that even when there is a resignation, this is not an especially practical form of accountability.

The failures that may have prompted the resignation will usually still be there – and the catharsis of the resignation may change the political mood, but may not mean any substantial change, still less redress or compensation for those affected.

The minister who has resigned often does not have any long-term adverse effects to their political career – and after a suitable period, they will often resume their senior political roles – sometimes again and again.

In this way, a ministerial resignation is too often not an exercise in accountability – but a substitute for it.

The resignations – which now can have a ritualistic quality – are what the political and media classes do to pretend to themselves and others that there is accountability within our political system.

‘there are calls on [x] to resign’

‘there is increasing pressure on [x] to resign’

‘[x] has resigned’

[…]

‘[x] returns to office’

And nothing else changes.

*

More effective accountability would be for [x] to stay in office, and account for failures and the reasons for the failures on the floor of the house of commons and before select committees, to appear before relevant public inquiries, and to co-operate with bodies such as the national audit office.

That is for ministers to own their mistakes and to, well, account for them – for that is the very meaning of that word: accountability.

But we get none of this, and we get cosmetic personnel changes instead.

*

Much the same as the above can also be said for ministerial sackings.

Again, this is often political theatre – even soap opera.

Little if anything actually changes with a sacking, little is accounted for.

Some political drama, perhaps, that is forgotten in a day or two.

*

Dismissals and resignations are, of course, part of any system of accountability – as resorts and sanctions.

But they are not the entirety of any meaningful form of political accountability.

For meaningful political accountability is the last thing any politician actually wants.

**

Thank you for reading.

Please support this liberal and constitutionalist blog – and please do not assume it can keep going without your support.

If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

The three reasons why Foreign Secretary Dominic Raab is facing demands for resignation – and why it is not because he has actually done anything wrong (which he has)

20 August 2021

There are serious calls for the foreign secretary Dominic Raab to resign – so serious that there is a real possibility that he may actually soon do so.

This political situation means, in practical terms, that three pre-conditions have been met.

*

The first is that there are those in government – officials and/or politicians – who want the foreign secretary to resign (or at least be significantly embarrassed).

Without those in in government being opposed to the foreign secretary, the media would not have been provided with the material with which they are supporting the demands that he should resign.

*

The second is that those in the news media also want the foreign secretary to resign (or at least be significantly embarrassed).

If the foreign secretary had good (that is, information supply) relations with the lobby and other political journalists then, even if somebody else in government was against the foreign secretary, he could ride this crisis out.

But, for some reason, the news media have done a cost-benefit analysis of Raab staying as foreign secretary, and they see no reason to shield him.

*

The third is that the public – or at least a significant portion of the public – care.

Something in this story has received public attention.

For even if those in government wanted Raab out, and the press saw no advantage in shielding him, there still would be no clamour for his departure – unless there was also any interest by the public.

It would be a Westminster village thing, and so on.

But there is public attention, and the public appear to be unimpressed.

*

So, for there to be a serious political-media demand that the foreign secretary should resign the following three conditions have been met: (1) someone in government – minister or official – wants him out, (2) the media will not protect him, and (3) the public are sufficiently interested so as to make this a story.

The absence of any one of these three pre-conditions would mean the foreign secretary would probably be safe.

That these three pre-conditions have all been met is what makes him politically vulnerable.

*

But.

Notice what is not one of the pre-conditions.

There is no pre-condition that the minister has actually done anything wrong.

That factor is almost politically irrelevant.

In fact, ministers get things wrong all the time.

But such ministers are usually safe – as no other minister or official wants him or her out, and/or the media will protect him or her, and/or the public are not sufficiently interested so as to make it a story.

This means there is no necessary corresponding link between (1) a minister doing (or not doing) something that means that he or she should resign and (2) that minister facing any serious clamour for him or her to resign.

*

In an ideal polity, all ministers – all of the time – would be under the same critical scrutiny as to the performance of their duties as Raab is now.

And our political system would be better for it.

But most of the time – almost all of the time – such practical accountability does not happen.

Ministers get things wrong constantly, but they are usually protected.

And this is because no other minister or official wants him or her out, and/or the media will protect him or her, and/or the public are not sufficiently interested so as to make this a story.

So they are often safe.

And this is the difference between a political resignation or sacking story in the news – and there not being one.

This is the accountability gap.

**

Thank you for reading.

Please support this liberal and constitutionalist blog – and please do not assume it can keep going without your support.

If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.