Category: Constitutional Law

The myth that the prime minister and this government is ‘libertarian’

6th July 2021

The myth of the libertarianism of Boris Johnson, the prime minister of the United Kingdom, endures.

But it is a myth.

By ‘myth’ I mean that it is a thing that has narrative force, and which some people believe to be true, but it is a thing that is ultimately false.

Johnson is, of course, a political libertine, in that he believes rules – and indeed laws – are for other people.

His government attacks the independent judiciary, the impartial civil service and diplomatic corps and the public service broadcaster, as well as disregarding the speaker of the house of commons, the electoral commission, the ministerial adviser on the civil service code, the panel on appointments to the house of lords, and so on.

And so on.

If his government can get away with weakening or eliminating a check or balance, it shall do so.

It will not be told by anyone what to do.

The politics of Kevin the Teenager.

And this defiance is no doubt the basis of the decision of the government to relax the lockdown, despite various warnings.

Members of the government, and their political supporters, are fed up with being told what to do – especially as the impositions are for the benefit of others.

But.

Is this restless defiance ‘libertarianism’?

Is there a coherent vision of limiting the power of the state vis-a-vis the individual?

This is a government which is seeking to disenfranchise people:

(And here it is nice to have a return of classic David Davis, as opposed to the Brexit variant.)

The government is seeking to ban people:

And this is from just two political Davids alone.

There is also, of course, the similar myth of the prime minister’s liberalism – that he, like Donald Trump, is really at heart just a metropolitan liberal.

Yet many in his cabinet – Priti Patel, Oliver Dowden, Robert Jenrick, Elizabeth Truss – merrily play with the fires of culture wars and the politics of social division and confrontation, rather than promoting the politics of inclusion and solidarity.

The prime minister does not mind or care.

By any serious definition of libertarianism and liberalism this government is neither libertarian nor liberal.

There is no general approach to limiting those with state power to the benefit of those who are affected by state power.

Instead we have a government with occasional twitches and jolts against state power while over time accumulating as much power as possible for the executive and dismantling or dismissing any entity capable of saying ‘no’.

The general approach of this government is authoritarian – though this authoritarianism can be set aside when the power of the state would be for the benefit of others.

There are many words for the general approach of the prime minister and his government, but ‘libertarian’ is not one of them.

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The one incomprehensible and inexplicable thing about Brexit: why did the Democratic Unionist Party support it?

5th July 2021

There will be many things about Brexit which will seem foolish or knavish.

Bad things that will make you sad or mad.

But usually you can work out the ‘why’ about the thing in question – even if you disagree with it, or even loathe it.

It may be that somebody was incompetent or dishonest.

But there will be an explanation of some kind.

There is, however, one thing – at least – which will always be incomprehensible.

Why did the Democratic Unionist Party and other unionists in Northern Ireland support Brexit – either so strongly or at all.

The shared membership of the European Union north and south of the border on the island of Ireland was the best guarantee of the continuation of the union.

There would never be any great urgent need for a border poll, and no great urgent need for any fundamental change, from any perspective.

But by supporting Brexit – and supporting the Conservative government policy of Brexit meaning departure from the single market and the customs union – this has made a border poll more likely and also a vote for a united Ireland more likely.

If a mischievous demon had been tasked with finding the most effective way of sabotaging the union, that demon would also have cheered on first Brexit and then the Theresa May/Boris Johnson approach of departing from the single market and the customs union.

It is a decision so incomprehensible that the two usual explanatory models of bad political decisions – foolishness and knavery – do not provide assistance.

For to posit either as an explanation is to imply that a thing is explicable, rather than inexplicable.

As a scientist would say: it was not even wrong.

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Are there again things stronger than parliamentary majorities? Bogdanor and the question of Unionist civil disobedience or even rebellion

In today’s Sunday Telegraph there is a short, 750-word opinion piece by Vernon Bogdanor, the eminent professor of government.

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Previously I have criticised Bogdanor for not appreciating the constitutional significance of the Good Friday Agreement – see here and here – to which he responded here.

My view is that he has a vision of the constitution that holds that the position before the Good Friday Agreement is the norm from which politics and law have since deviated.

If you look at that exchange, you can form your own opinion on the merit or otherwise of my view.

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Bogdanor’s latest opinion piece is about the Northern Irish high court decision last week in respect of the challenge by unionists of the Northern Irish protocol – a case which this blog touched upon here.

The judgment is some 68-pages but is readable and is worth reading.

Bogdanor spends the first part of his article setting out a general account of the submissions made by the applicants and he then briefly summarises the court’s decision.

His summaries are not the ones that I would write – but they are unexceptional even if not balanced.

And then.

The article takes a turn.

We get to the final three paragraphs, and something happens.

Let’s take these paragraphs in order – and sentence-by-sentence.

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‘The uncodified British constitution allows Parliament to decide that Northern Ireland should be subject to different goods regulations and trading rules from the rest of the UK.’

The second part of that sentence is generally correct – though it is hardly the fault of our uncodified constitution.

Such a decision could easily have taken place under a codified constitution.

It was, of course, a decision for which the government had a mandate in the December 2019 general election as part of the ‘oven-ready deal’.

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‘But Unionists hold a different view of the constitution.

‘They hold that loyalty to Westminster is not unconditional, but dependent upon respect for the Union.’

This is a rather significant thing to say – and it contends that the legitimacy of the United Kingdom state is ultimately contractual – even transactional – as that loyalty is dependent on ‘respect’.

The implication of this would appear to be that if the United Kingdom state is in breach of this contract then the unionists no longer should abide by the law of parliament.

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‘That is why in 1974, a power workers strike by Unionists brought down the Sunningdale Agreement, which had provided for a cross-border Council for Ireland giving the Republic what Unionists believed was excessive influence over Northern Ireland.

This refers to this exercise in civil disobedience.

Is Bogdanor suggesting there could, as a matter of fact, be similar civil disobedience now?

Or is Bogdanor even averring that such civil disobedience would be justified under our uncodified constitution?

It is not easy to tell.

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‘The Unionists are Queen’s rebels.’

I am not sure what Bogdanor means by this.

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‘Where then stands the Protocol?

‘The EU Commission has agreed to the Government’s request to extend the grace period for chilled meat for three months.

‘But that merely kicks the can down the road.

‘In any case, the argument is not about sausages but about whether Northern Ireland is to be cut off from the rest of the UK.’

Here we perhaps go from the salami to the ridiculous.

The dispute is, of course, more than about sausages – but to escalate it to it being about the very union does not necessarily follow.

There are a range of resolutions to this dispute – either through the mechanisms of protocol or by amending it – all of which are consistent with the continued existence of the union.

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‘The court in Belfast is, however, right to this extent.

‘The question of whether the Protocol is constitutional is one not for the courts but for politicians.’

Here the contentions of the opinion piece appear to become confused.

A couple of sentences ago, Bogdaonor was saying that there could (and even perhaps should) be civil disobedience.

Civil disobedience means direct action outwith the processes of political institutions – that is out of the hands of politicians and the formal political process.

Unless, of course, what he means by ‘politicians’ are the leaders of the envisaged civil disobedience.

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‘The case for the Unionists is based on the Enlightenment principle of consent of the governed.’

Is this proposition correct?

The basis of unionism is the positive belief in membership of the United Kingdom, a belief that would still have force even if (or when) it becomes a minority view in Northern Ireland.

If (or when) that does come to pass, would a united Ireland (as endorsed in a border poll) be an imposition on the unionists?

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‘Sadly, the Unionists of Northern Ireland, together with Kurds and Israelis, are deemed not to be entitled to the benefits of this principle by progressive theologians.’

No, I am not sure what this means either.

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‘But it is, nevertheless, a principle which should be enthusiastically championed by the Conservative and Unionist party of the United Kingdom.’

This is the last sentence of the article, and its import is unclear.

The Conservative Party is currently the governing party of the United Kingdom and it stood on an explicit manifesto commitment to get Brexit done by means of the withdrawal agreement – which contained the Northern Irish protocol.

For them to now switch would mean negating a manifesto commitment on which they won an emphatic victory in a general election dominated by the issue of Brexit – a general election that treated the whole of the United Kingdom as a single political unit.

This treatment of the United Kingdom as a single political unit was also, of course, adopted at the time of the 2016 referendum, where a majority the voters of Northern Ireland (like Scotland) voted to stay in the European Union.

Presumably the decision of the parliament of the United Kingdom to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland was also a breach of some enlightenment principle or other.

And when the Conservative Party do not ‘enthusiastically champion’ what Bogdanor wants them to champion, what then?

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Another constitutional principle – also in part from the Enlightenment, as it happens – is that of the rule of law.

The ‘rule of law’ is not mentioned in Bogdanor’s 750-word piece, which still found room for mention of both the ‘Queen’s rebels’ and ‘progressive theologians’, and is a shorter phrase than either.

The contention that unionist loyalty is ultimately conditional despite the law of parliament is reminiscent of “there are things stronger than parliamentary majorities” – a phrase with an unfortunate history in the context of Ireland.

A general strike – such as in 1974 – was not the only way that unionists in Northern Ireland have taken it upon themselves to prevent a perceived breach of the perceived contract between the government and the governed.

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To the extent that Bogdanor is warning in a positive way that peace and stability in Northern Ireland requires sincere and proper regard to the unionists then no sensible person can gainsay him.

But to the extent (if any) that Bogdanor is contending that the uncodified constitution and the principle of the consent of the governed justify a resort to resistance and rebellion (queenly or otherwise, and unarmed or otherwise) and discard for the rule of law then I fear he has fallen into error.

Bogdanor is right to say that political questions should be dealt with politically and not by the courts, but such questions also should be dealt with in accordance with the law.

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The recent two by-election defeats for the governing party and their implications for law and policy

2nd July 2021

This is not a party partisan blog and there are good and bad in all mainstream parties (though some parties have more good than others).

But it is a liberal constitutionalist blog, and so the two recent defeats for the governing party are a good thing: the politics of inclusion and solidarity seem (just about) to have defeated the politics of exclusion and division.

The fragile coalition that bought the current government to power in December 2019 – in effect, to ‘get Brexit done’ and to ensure that the then leader of the opposition did not become prime minister – may turn out to be unsustainable.

So what?

This is of interest to those with strong feelings about party politics – but are there any implications for law and policy, from a non-partisan perspective?

Perhaps.

One of the features of the illiberalism of the current government seems to be a belief that constitutional and cultural conflict ‘play well’.

So you have the sight of infantile government ministers picking fights and attempting to provoke ‘culture wars’.

And you have the loud trumpeting of attempts to further dislocate constitutional arrangements – with the executive seeking to undermine the checks and balances provided by the courts, the legislature, the impartial  civil service and diplomatic corps, and so.

Each attack intended to impress and mobilise the minority electoral base that is believed to be sufficient to keep this illiberal government in power.

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But it seems not to be working any more.

The lever may have come loose.

If this is the case – if – then there are two possible things that may happen: bad and good.

The bad thing would be that government ministers and their supporters want more illiberalism!

More division and exclusion!

More constitutional conflict and culture war!

Or, a good thing: government ministers and their supporters may come to their senses as they realise the diminishing political returns for their illiberal (and vile) confrontational politics.

Any sensible person would hope for the latter.

But nobody who has followed politics since 2016 could be confident that such a welcome development will occur.

So it all could get worse.

Brace, brace.

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Five Unchecks and Imbalances – a catalogue of Boris Johnson’s ongoing assault on constitutionalism

29th June 2021

Every so often someone posts or tweets a succinct summary of the direness of a predicament.

And yesterday the Guardian live blog managed to put all the following into a single blog update:

None of these are a check or balance in the classic constitutional sense, such as the judiciary or parliament as a whole (though, of course, the speaker is one of the five).

And if only one of these example were sidelines, one could dismiss it as part of the rough tumbles of practical politics.

But taking all five together, there is a trend that should concern anyone – apart from the hyper-partisan supporters of the government.

Each example tells of the lack of constitutional self-restraint that that is the stuff of constitutionalism.

(Constitutionalism being the view that there are political rules and norms that have priority over partisan advantage.)

And these five examples are in addition to the disregard the prime minister has to the checks and balances in the classic constitutional sense: the judiciary, parliament, the independent civil service and diplomatic corps.

This is not – yet – a constitutional crisis, for as the two Miller cases and the Benn Act show, it is still possible for other elements of the constitution to ultimately assert themselves.

But is certainly all part of an ongoing assault on constitutionalism.

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The Yorke-Talbot Opinion – and why Hardwicke Chambers are changing their name

24th June 2021

Last June, after the death of George Floyd and the rise of the Black Lives Matter movement and the toppling of the statue of Edward Colston, I did a thread on Twitter pointing to the historic complicity of the legal profession in slavery.

https://twitter.com/davidallengreen/status/1271696745836228608

The second tweet in that thread mentioned a legal document of which few had heard: the Yorke-Talbot opinion of 1729.

https://twitter.com/davidallengreen/status/1271697813781561345

The Yorke-Talbot opinion was an important and consequential legal document.

The opinion had the effect of legitimising slavery in Great Britain for decades.

Yet, it was not a judgment or an act of parliament or a royal charter or indeed any text usually regarded as having the force of law.

It was, as its name tells us, an opinion.

But it was the opinion of the government’s two most senior law officers for England and Wales: the attorney general and the solicitor general.

And although in those days such figures could also do private client work, the offices of the two lawyers meant that this opinion had the highest authority.

To modern eyes, however, the striking feature of the opinion is just how flimsy it is.

The relevant text in its entirety is:

‘In Order to rectify a Mistake, that Slaves become free, by their being in England, or Ireland or being baptized, it has been thought proper to consult the King’s Attorney and Solicitor General in England thereupon, who have given the following Opinion, subscribed with their own Hands.

‘We are of opinion, that a slave coming from the West-Indies to Great-Britain or Ireland, with or without his master, doth not become free, and that his master’s property or right in him is not thereby determined or varied; and that baptism doth not bestow freedom on him, or make any alteration in his temporal condition in these kingdoms. We are also of opinion, that his master may legally compel him to return again to the plantations.’ 

You will see there is no authority cited, nor the application of any legal principle, nor the setting out of any jurisprudential reasoning.

A bare assertion of the law that would embarrass a law student in their first-term

Here is a facsimile of an early published version:

The purpose of this opinion was to counter the flow of increasingly liberal judgments on the slavery issue associated with Chief Justice Holt.

(A judge incidentally also associated with practically ending witchcraft trials.)

The consequence of the Yorke-Talbot opinion was to provide a legal device which all those involved in slavery and the slave trade – lawyers, traders, insurers, owners and so on – could rely on in the case of any doubts as the legality of slavery and the slave trade.

A piece of paper to wave in the face of any moral scruples or legal doubt.

A piece of paper with the high authority of the attorney general and the solicitor general.

It was the comfort and security needed for hardened men of business who made their fortunes and earned their professional fees out of this trade in human misery.

The great extension of British involvement in the slave trade was a feature of the period after 1729 – all under the legal cover of this Yorke-Talbot opinion.

It was not until Somerset’s case of 1772 that the courts began to decide otherwise.

Yorke and Talbot themselves did well out of their legal careers – both became lord chancellor, with Yorke taking the title of Lord Hardwicke.

(On this more generally, see my post here.)

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Hardwicke is a famous name in English legal history, and so things are named after him.

When I was called to the Bar by Lincoln’s Inn, one of the scholarships that I was awarded was a Hardwicke scholarship (though they have recently been renamed entrance scholarships) and this paid for certain administrative fees attendant on becoming barrister.

Another thing named after Hardwicke is a set of barristers chambers in Lincoln’s Inn (where I once did a mini-pupillage).

There are other things too – it is just one of those great legal names, like Halsbury or Denning.

I did not think anything concrete would come of my thread, other than to generate interest in the often unpleasant history of the legal profession.

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But something did come of it, one year later.

I understand I am one of the legal bloggers referred to in that statement.

Hardwicke chambers, who were already changing location, had decided to use the move as an opportunity to change their name at the same time.

What happened was that, prompted by the thread and the interest it generated, I am told senior members of that chambers went off to research the subject for themselves:

And the barrister Nicholas Leah has now provided a thread on the opinion far more erudite than mine:

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And so – in the great traditions of the Bar – an independent chambers had been gently persuaded of a change of name and had done so on the basis of research and evidence.

Unfortunately one government minister, a senior barrister, decided that this smacked of woke-ism:

This was a silly intervention from someone who knows (or should know) better.

It indicates that the minister does not know (or does not care) about the exceptional nature of the Yorke-Talbot opinion and of its dire consequences.

One would have hoped that a minister in the department of justice would have congratulated a chambers for showing independence and making a decision based on persuasion and evidence.

Anyway, he was gently put right:

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The curious thing is that (similar to Edward Colston) the sheer number of things named after Hardwicke obscured rather than revealed his role in history.

What had been ‘erased’ from history was the York-Talbot opinion – and it is a document that should be better known to lawyers, historians and the general public.

Changing the name of a chambers (or of a scholarship) certainly does not erase Hardwicke – indeed, he is now more widely known about (again, like Edward Colston).

And a better understanding of how the legal system and lawyers facilitated slavery provides us with a fuller understanding of our own history.

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Worldliness is the basis of any decent constitution

Summer solstice, 2021

One of the themes of my law and policy commentary on this blog and elsewhere is that a culture of ‘constitutionalism’ is more important than constitutions – and that demands for a ‘written constitution’ should be not be seen as more urgent than demands for a constitution that works.

Constitution-mongers – to use the pejorative phrase of Edmund Burke – may serve up for sale eloquent and elegant texts, detailing which institutions should do what in an ideal polity.

But the basis of any worthwhile constitution is not the exposition of what each institution of the state can and should do, but what will check and balance each element of the state.

A worthwhile constitution is one that goes along with the grain of political behaviour, and not cut across it on the basis of what ‘should’ happen.

Those with executive power will naturally resent those who can hold them to account.

Those with legislative power will naturally be at odds with those who interpret and adjudicate upon their legislation.

Those with judicial power will often want to substitute their views for those who are charged with legislative power or executive power.

And so on.

The value – the merit – of any constitution is how well it deals with conflict between the elements of the state.

Like a contract, the purpose of a constitution is not to provide for what happens when the relevant parties are in harmony – for then there is no recourse to any legal instrument or set of arrangements.

A constitution – like a contract – is there to regulate the consequences of things going (foreseeably) badly.

The quality of understanding which things can go (foreseeably) badly is worldliness.

And constitutional worldliness, in turn, is the characteristic of those who realise that the content of constitutional texts is not enough – it is more about how the rules and values set out in those texts are enforced.

Those constitutions which have as their premise that there will be conflicts, and then provide how those conflicts will be practically regulated and resolved, are more likely to endure than those with heady, eye-catching lists of rights and freedoms and neat lists of separated powers.

Constitutionalism is the belief that there are principles and rules about how a political system is arranged that have a greater priority than the partisan interests of any politician or party.

Constitutionalism is a way of thinking – and so a polity with few formal checks and balances can have a stronger constitution than one with lots of glittery provisions that are ignored and derided.

Those with the power of the state will tend to want to abuse the power of the state.

Constitutionalism is about how this tendency is, in the real world, checked and balanced.

And any constitution without such worldliness is hardly a constitution at all.

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There cannot be ‘Public Sector Reform’ without genuine transparency and a general duty of candour

20th June 2021

(This is the third in a trilogy of short posts about the accountability of the United Kingdom state – see Garbage in, Garbage Out and The Accountability Gap.)

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Every so often there will be some politician – usually Michael Gove but sometimes someone else – who will urge that there be ‘public sector reform’.

This reform should be ‘radical’ or ‘fundamental’.

Heads will nod, and hands may even clap.

Worthy pdfs will be clicked on earnestly, only for the tabs to be then left unread.

And then nothing really happens until the next time some politician – usually Michael Gove but perhaps someone else – will urge that there be ‘public sector reform’.

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What is often missing in many of these heady, fine-sounding proposals is the one thing that would genuinely be radical or fundamental.

This would be to force public sector bodies to disclose information against their will.

For as long as public bodies – politicians and officials – can pick and choose what information can be disclosed publicly, there can never be any meaningful reform of the public sector.

There needs to be a tension – a check and a balance – in respect of any public body’s estimation of itself and its performance.

Unfortunately – as typified by the cabinet office under Michael Gove – there is a general public sector disdain for transparency and freedom of information.

There always seems to be some reason to keep public sector information secret – from ‘national security’ to ‘commercial confidentiality’.

Indeed, the most dismal and insincere official documents in existence are freedom of information non-disclosure decision letters.

Everyone involved knows that the content of such letters is faithless guff – but nobody with any power seems to care.

When there is no duty of disclosure and no duty of candour there can be no holding of the public sector to account.

And if there is no way of holding the public sector to account then any ‘public sector reform’ will not succeed against the private interests of the officials and politicians involved – nor against the interests of external suppliers.

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So, to mimic David Hume, there is something to ask of any public sector reform, whether it is proposed by Michael Gove or somebody else:

Will the proposed public sector reform result in the public sector disclosing information that it otherwise would be unwilling to disclose?

No?

Will the proposed public sector reform mean that officials and politicians – and relevant third parties – being candid when they otherwise would not be?

No?

Then commit the proposed public sector reform to the flames, for it will contain nothing but sophistry and illusion.

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The Accountability Gap and the State of the United Kingdom

19th June 2021

Here is a challenge.

Think of a normal, day-to-day process of the United Kingdom state.

And then try to think of examples when that process has succeeded in holding the state accountable – that is against the government’s wishes.

It is not easy.

Freedom of information is impotent.

The public services ombudsman is inefficient (at best).

Debates on the floor of the house of commons – and ‘opposition days’ – provide little more than Westminster theatre.

The prime minister casually lies at the weekly set-piece of political accountability, without any sanction or shame.

Written parliamentary questions take an age to be answered – and the answers given are often useless.

Government press offices are expensive exercises in not providing any help other than to the careers of those who staff them.

The only exception is that, from time to time, a parliamentary select committee can publish a report that hits through – though this often is down to the capabilities and qualities of whichever clerks work for the committee, than to the MPs and peers which formally comprise the committee’s membership.

And so because the normal processes of the state are generally so weak that we end up with ad hoc processes such as inquires and court cases to force the state into accounting for its actions (and inactions) against its will.

Think here of the post office scandal litigation, and think of the Hillsborough and Daniel Morgan panels.

And there are other examples.

(And imagine how many examples there are where there have not been such determined campaigners dedicated in getting at the truth.)

Ad hoc exercises in practical accountability such as court cases and panel inquiries are, however, often undermined (as this blog averred yesterday) by a legal inability to force disclosure against the state’s will or interests.

And each success in forcing accountability by means of a court case or an inquiry usually has equal and opposite significance as an example of failure of the institutions of the state to have held other parts of the state properly accountable in the first place.

In particular: the failure of parliament to be an effective check on the executive.

There is a severe accountability gap in the state of the United Kingdom.

And it is from this gap so many other political problems emerge.

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