Category: Constitutional Law

The ‘state’ with no clothes on

16th May 2021

When I was young I had an illustrated book about kings and queens – but the one illustration which stayed with me was not any of the formal mannered portraits.

Instead, it was this engraving by the novelist William Makepeace Thackeray:

It still dominates how I think about kingship, queenship and indeed any formality of power.

Strip away the paraphernalia of dominance – not just the garments but also the symbolism and the rhetoric and the concepts – and you just ultimately have people.

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A great deal of what we posit as politics and law – almost all of it – exists only in the mind.

They may well have grave real-world effects – but concepts such as the ‘state’, ‘government’, ‘markets’ and ‘society’ are, just that, concepts.

And without those concepts we are all just as the French king in Thackeray’s engraving.

If everyone suddenly stopped believing in the legitimacy of the ‘state’ there would be little that those with political power could do, other than to resort to coercive power.

But even totalitarian regimes usually make some effort at legitimisation – as resorting to pure repression is demanding and unsustainable in the medium- to longer-term.

The anarchist may well want to ‘abolish’ the state – but the ‘state’ has no real existence other than in the minds of people.

All it takes is for people to believe differently about government and the law, or to believe nothing at all.

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This is one reason why ‘legitimacy’ matters – and, because legitimacy matters, it is also why constitutionalism matters.

Constitutionalism is the notion that there are certain rules and principles of political conduct that have priority over mere political expediency and party advantage.

Once the institutions and processes of the state are stripped of their legitimacy then there is little to no reason for people to accord respect and deference to government and law.

And when people no longer see a government and its law as legitimate then, absent a programme of coercion, there is the pre-condition for a political – even social – crisis.

Sensible politicians of the right and left once knew this.

The reckless assaults on constitutional norms in the United Kingdom and the United States are the political equivalent of playing with fire.

And so there is immense danger when there are politicians like Donald Trump and Boris Johnson that are hyper-partisan, undermining the legitimacy of (with Trump) elections and (with Johnson) the separation of powers and checks and balances.

This may not end well.

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The age of the three referendums – why we are only partly through this significant constitutional moment

15th May 2021

One of the more refreshing shifts in historiography was when historians turned from ‘the English civil war’ to ‘the war of the three kingdoms’ – acknowledging that the conflicts of the mid-1600s were more to do with the politics and conflicts of Scotland and Ireland than a purely English affair.

Future historians looking at the age of Brexit may similarly have to see how Scotland and Ireland were causes of immense political instability and potential constitutional crisis.

For the referendum we all know about – and the one we are all preoccupied about – may for historians seem to be just the first of three.

And those historians may group together the 2016 Brexit referendum with a yet-to-come Scottish independence referendum and border poll in (Northern) Ireland.

It will be the fall-out of the three referendums taken together which will be the end and beginning of a chapter in our constitutional and political history.

This is not to predict the outcome of those referendums – or the outcome of what would then (if anything) that follows those referendums.

In this time of unwelcome and unexpected political surprises, few can be confident in forecasting what things will happen next.

But the 2016 referendum may be seen as just one move of a gear in something more complex – the recasting of the state of the United Kingdom.

The one thing which may be certain is that the (perceived) mandate of any referendum result now has a greater charge than before.

Brexit was carried through at speed and with no real planning in the face of opposition (and of reality) because of the purchase of a referendum result.

It is therefore difficult to deny, if either or both of the upcoming referendums (if they happen) vote for change, that such a change can be opposed on the basis of a higher priority for the will of parliament.

We may find that one cannot pick and choose the ‘will of the people’ – if there are to be referendums, then the expectation is now (more than before) that the results will be implemented.

But we also may find that the experience of Brexit will turn people against voting for further drastic changes – that the next referendums are reactionary rather than radical in their nature.

Of course: there will be those historians – like there are for the civil wars – who will say, with hindsight, that the outcome was inevitable all along.

Those of us here at the time, however, can only seen uncertainty and multiple contingencies.

 

This illiberal Queen’s Speech is the next step for authoritarian populism after Brexit

11th May 2021

Well, that was quite the Queen’s Speech.

A legislative programme geared to make a certain sort of person grin and clap and cheer about ‘owning the libs’.

But it is not just about mere superficialities – it is in substance a multi-pronged attack our liberties.

The prime minister is not only taking back control of when there will be general elections, the government is making it harder for people to vote.

The government is also making it harder for government decisions to be challenged in court, and it is making it harder for anyone to protest about any of this.

https://twitter.com/davidallengreen/status/1392125915543523330

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Of course: this is not a surprise.

Five years ago, senior members of the governing party affected to want to give effect to the ‘will of the people’.

But, as is often the case with authoritarian populists, the supposed mandate of the people was only ever a convenient rhetorical device for ever-greater central control.

And the sorry state of our politics means that the government will probably get away with this.

There may be opposition in the house of lords – and some measures may be open to legal challenge.

Yet, even with the few remaining checks and balances in out constitutional arrangements – this is what the government does as the next step after ‘taking back control’.

The impression is that Brexit was not about liberation, but about creating a political culture where the opposite of liberation – imposed authority – became more entrenched.

Our post-Brexit polity is now looking very dismal and depressing indeed.

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Defenders of the Union should argue their case on the merits, rather than hide behind technical legalistic points

10th May 2021

Those who are opposed to a further independence referendum for Scotland are making the same mistakes as Remainers in the Brexit debates.

On Twitter and social media generally – and in mainstream media – those opposed to a referendum (and thereby to independence) are taking the following techincal points:

– that the last referendum was supposed to be ‘once in a generation or lifetime’

– that there is no majority for the Scottish National Party in the Scottish parliament

– that enabling legislation is outside the legislative competence of the Scottish parliament

and so on.

As a veteran of similar debates over Brexit, these technical – almost pedantic – contentions seem familiar.

There were those who argued that the Brexit referendum had no political purchase because it was ‘advisory’.

There were others who – until quite late in the Brexit process – denied that Article 50 had actually been triggered and sought to make legal challenges on this basis.

The feature of these positions is that they said nothing about the merits – or otherwise – of Brexit.

And similarly the pedantic legalistic objections to a further independence referendum for Scotland also say nothing about the merits of either a referendum or independence.

Indeed, each time one of these pedantic legalistic contentions is made, an opportunity is lost to make a case on the merits of the Union.

As I can aver as a pedantic legal commentator, few if any voters are influenced in their vote by pedantic legalistic points.

The impression given by reliance on such contentions is that they are substitutes for arguments on the merits.

A confident supporter of the Union should say about a referendum ‘bring it on – and let me show you the merits of the Union’ – rather than trying to evade or avoid a referendum on technicalities.

That is if there is a case for the Union on the merits.

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The Sunday after the elections before – and what, if anything, is the significance of the results

9th May 2021

Party support comes and goes.

It was not too long ago that an electorate very similar to the current one returned a hung parliament.

It was also not too long ago that the Conservatives had consistently failed to get an overall majority from 1997 to 2015.

And now the conventional wisdom is that the Conservatives are now so dominant that they will not easily be displaced.

That populist Conservatism from time to time does well is not unusual – like Benjamin Disraeli, Boris Johnson irks the liberals and progressives and attracts political support from those who political scientists tell us should be voting for the Left.

But.

If it is now the case that, given our electoral and parliamentary system, there is no viable alternative national government then that would be significant.

It it becomes politically impossible for any one opposition party to form an overall majority then this means either the Conservatives will continue to dominate Westminster or the opposition parties have to work together rather than compete with each other.

For the growing Green party (for which I voted, finally at fifty aligning my voting preference with my surname), this cross-party approach should come easily – as it does for Green parties elsewhere in Europe.

For the Liberal Democrats, however, perhaps the last thing they would want is the experience of coalition – for it was participating in the last coalition that seems to have effectively to have destroyed the credibility of the Liberal Democrats.

And for the Labour Party, it would seem that they are more than most parties already a coalition, though one which appears to be at the beginning of a civil war.

Our constitutional and electoral arrangements, therefore, make it difficult to see how the current governing party can be dislodged.

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But.

As I averred in my quick and short post on Friday, there are two liberal points to make about the recent elections.

First, a decline in tribal partisan voting is a good thing – and people who have changed their vote once can change it again.

And second, the impact of regionalism is stronger now than for any time maybe since world war two.

Regional mayors now have followings and power bases in a way that Joseph Chamberlain and Herbert Morrison the other politicians whose power bases were in the regions would recognise.

Regional power bases are as much of a practical check and a balance to central government excess as much as the judiciary and the legislature, if not more so.

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Just a final note about the unexpected legacy of Tony Blair and his governments in all this.

The Good Friday Agreement and Scottish and Welsh devolution and the first steps towards English regionalism unintentionally provided an extraordinary matrix for post-Brexit politics to play out in.

There is a non-trivial chance that both Scotland and Northern Ireland may leave the Union, not only because of Brexit but also because of policies and changes made a decade or so before in a different context.

Those changes, to a large extent, were intended by many at the time to strengthen the Union – as they may well have done, had it not been for Brexit.

But the unexpected addition of Brexit as an active agent may have the opposite effect to that first intended.

It is never easy to make solid forecasts about politics and constitutional affairs – the significance of the elections last week may seem very different in a few years or they may completely forgotten.

But there is a possibility, if not a probability, that the prospect of continued Conservative dominance will have an equal and opposite political and constitutional reaction.

And one day in hindsight, that reaction will no doubt be seen as having been inevitable all along.

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The mandate for a Scottish independence referendum

8th May 2021

During the Brexit political process – and especially during the (much-missed) hung parliament of 2017-2019 – one of the arguments for Brexit to take place without a further referendum was that if one added together the votes for the Conservatives and the United Kingdom Independence Party and the Democratic Unionist Party (or added up the parliamentary seats for the Conservatives and the DUP), one had a majority for Brexit without any further referendum.

In essence: it did not matter whether the Conservatives were a minority either in terms of the popular vote or parliamentary seats, there was still a mandate if you added parties together.

Now, as the Scottish National Party appears not to have an overall majority in the Scottish Parliament, there are those who contend that the lack of that majority means that there is no mandate for an independence referendum.

However: adding the SNP and Scottish Green seats together will give a majority, as both parties campaigned expressly for an independence referendum.

And, of course, had the anti-referendum parties formed a majority in the Scottish Parliament then those opposed to an independence referendum would have averred that this was a mandate for no referendum.

Consistency may be the hobgoblin of little minds, as someone once said, but it appears to me that if one accepts that the 2017-19 hung parliament was entitled to proceed with Brexit without a further referendum, even though no party had an overall majority of either seats or the popular vote, then the SNP and Scottish Greens together are entitled to do the same with an independence referendum.

There are legal issues – including (adopting a Wednesday Addams smile) the prospect of a hard-fought constitutional case at the supreme court.

And there are practical policy issues, as the demands of the ongoing pandemic mean that there are more urgent policy proposals than an independence referendum.

But on the issue of mandate, it does not matter that the mandate for an independence referendum is formed by an aggregate of parties, just as it did not for Brexit in 2017-19.

The political argument now should be on the merits of independence, rather than on the issue of a mandate for a referendum.

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Liz Cheney’s important statement about constitutionalism and politics

6th May 2021

From time to time an utterance by a politician becomes more important than the here-and-now of practical politics.

Such an utterance is an opinion piece in the Washington Post by the conservative congresswoman Liz Cheney.

This blog is written from a liberal perspective, and so there would normally be little if anything that this blog would politically commend about Cheney’s various policy positions.

But this is also a constitutionalist blog, and what Cheney says is spot-on – and it needs to be heard and understood by conservatives in the United States and elsewhere.

Cheney avers:

‘Trump is seeking to unravel critical elements of our constitutional structure that make democracy work — confidence in the result of elections and the rule of law. No other American president has ever done this. The Republican Party is at a turning point, and Republicans must decide whether we are going to choose truth and fidelity to the Constitution.’

She continues:

‘I am a conservative Republican, and the most conservative of conservative values is reverence for the rule of law. Each of us swears an oath before God to uphold our Constitution. The electoral college has spoken. More than 60 state and federal courts, including multiple Trump-appointed judges, have rejected the former president’s arguments, and refused to overturn election results. That is the rule of law; that is our constitutional system for resolving claims of election fraud.

‘The question before us now is whether we will join Trump’s crusade to delegitimize and undo the legal outcome of the 2020 election, with all the consequences that might have.’

And concludes:

‘…if Republicans choose to abandon the rule of law and join Trump’s crusade to undermine the foundation of our democracy and reverse the legal outcome of the last election.

 

‘History is watching. Our children are watching. We must be brave enough to defend the basic principles that underpin and protect our freedom and our democratic process. I am committed to doing that, no matter what the short-term political consequences might be.’

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As this blog has set out before, constitutionalism is about there being constitutional principles that are distinct from and more important than political expediency.

The moment of truth for a constitutionalist is when one sees a distinction between the integrity of the constitution and political advantage and then sides with the constitution.

Constitutionalism is thereby, in this way, about choice.

It is easy – as some fogeys do – to say the words of constitutionalism: blah blah common law rights blah blah Magna Carta blah blah freedom under the law.

It is quite another to elevate constitutional principles above party and partisan advantage in a given practical situation – to say that a course of action should not be taken because it would violate constitutional norms.

One of the more unfortunate features of the authoritarian populist nationalism (and there are other words for it) that has been dominant recently in the United Kingdom, the United States and elsewhere recently, is that there has been no constitutional self-restraint.

Cheney’s article is a reminder that conservatives – as well as liberals and progressives – can take constitutionalism seriously too.

Perhaps the Republican Party will ignore this principled stand – and carry on with its frenzy of Trumpism.

But if that frenzy ever does come to an end, it will be because of warnings such as this from Cheney.

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The crown at a constitutional crossroads – my Prospect column this month

5th May 2021

My column at Prospect magazine this month is about the monarchy.

Please click here to read it – and leave any comments below.

In particular, I would be interested in any views on my broad point that – regardless of the succession – the monarchy is likely to have to change anyway, as the current model was very much a response to the specific (and challenging) conditions of the mid-twentieth century.

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Why public inquiries are often an admission that the other elements of the State have failed

2nd May 2021

It is a familiar routine.

Something horrible has happened and somebody is to blame, and so the demand is made that there is a public inquiry.

There is nothing wrong with this demand.

Indeed, this blog yesterday averred that the the inquiry into the Post Office scandal should be placed on a formal basis, with powers to compel evidence.

Similarly, all sensible people want an inquiry started as soon as possible into the government’s handling of the coronavirus pandemic.

There are also many other subjects that would benefit from the focus and dedication of a public inquiry.

But.

Many public inquiries, and most demands for public inquiries, are also implicit admissions of failure.

The admission of failure is that the other elements of the state – primarily the executive, the legislature, and the judiciary – have failed in their roles.

That there has been insufficient control and transparency within the government, and/or that there has been insufficient scrutiny by or accountability to parliament, and/or a sense of general injustice lingering after attempts to litigate specific matters in the courts.

Of course, there are certain discrete issues where inquiries are appropriate and do work which could not have been done otherwise – for example, the Cullen inquiries.

But if the other elements of the state had performed their proper constitutional functions, key issues of transparency and accountability – that are the stuff of many inquiries, and of most demands for them – could be addressed more directly and immediately by elected politicians.

This, I know, is wishful thinking and no doubt the counsel of constitutional perfection – yet each demand for an inquiry is, like the ringing of a bell, often an indication of wider state failure.

Politicians are comforted and protected by this habit of thought – as they can say and nod solemnly that there should be (or may be) an inquiry whenever something goes wrong.

Lessons will be given and then learned by having an inquiry – but we will never learn the lesson that perhaps we should be catching problems at an earlier stage of the political process.

How can we shift exercises in transparency and accountability back to earlier in the political process?

To be dealt with parliamentarians, holding the executive to proper account?

There is no easy and obvious answer.

Perhaps we should have an inquiry…

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How, in practice, can a prime minister be prevented from lying to the House of Commons?

30th April 2021

The relentless and casual dishonesty of the current prime minister Boris Johnson may still have political or parliamentary consequences.

But just as a thought-exercise, say, would it be a good idea to put the prime minister under oath (or affirmation) at PMQs?

Then, in theory, the prime minister’s mind would concentrate wonderfully, as he would be under some sort of punitive sanction in the event he knowingly said something false.

In this way, the position of the prime minister would be akin to a witness in a legal case, who is under pain of perjury in the event that they do not say the truth.

It is the sort of notion that can appeal to the mind’s eye.

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But.

It would not work easily in practice.

For example: who would determine whether the prime minister is saying something untrue or not?

If the house of commons as a whole, they can do this by motion already – although this will not happen in practice to a prime minister with an overall majority.

And, if not the house of commons as whole, who?

The speaker? A committee? An official?

How would they go about assessing whether there had been a falsehood or not?

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And then there is the deeper – almost categorical – problem.

The prime minister is not providing evidence in answer to parliamentary questions.

This by itself differentiates the prime minister from a witness in legal proceedings.

A prime minster may be asked to give an account of the government’s position – an explanation, rather than a list of facts.

Indeed, any statements of fact are merely incidental to this giving of an account.

A prime minister can thereby provide a full answer to a parliamentary question and not state any fact at all.

Accordingly, the witness-perjury model is not an exact fit.

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But how do you stop a prime minister – or any other minister – from stating untruths at the dispatch box?

Thee polite constitutional fiction is that honorable and right honorable members do not lie in parliament – and that is why they cannot (other than by a parliamentary motion) be accused of lying. 

But this ‘good chaps’ theory is being flouted – brazenly so.

We therefor have a problem without an easy solution.

Putting the prime minister under oath may not work – but what would?

How can – in practice – there be a check and balance to a prime minister lying in the commons – if mere conventions do not matter any more?

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