Category: Constitutional Law

The noises made by United Kingdom ministers complaining of exclusion from European Union decision-making is the sound of Brexit

9th February 2021

One delight of the internet age is that you are more likely to see copies of original political correspondence.

Before the late 1990s you could have a serious interest in politics and public affairs and never see a copy of an official letter on headed paper.

Now, though usually when it suits a politician or official involved, you will see formal correspondence as images attached to tweets or embedded in news articles for you to scroll and look at for yourself.

On the face of it, this is a boon for transparency: you get to see what these letters say for yourself, rather than relying on the spin of ‘a friend of the minister’ or the rushed summary of a busy reporter.

But this is somewhat illusory, for three reasons.

First, as mentioned, one almost always only gets to see what it suits somebody with power for you to see.

Second, some of the politicians most adept at the game of letter writing for publication – such as Michael Gove at the cabinet office – are in charge of government departments with miserable records in respect of freedom of information.

And third, the letters are invariably political rather than administrative devices, written with the audience of supporters and media in mind, rather than to inform the recipient.

So, notwithstanding the grand headings and formal paraphernalia, such letters should be presumed to be mere propaganda and gestures, unless a more serious nature can be shown.

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But.

Sometimes such letters can be unintentionally revealing.

And two such telling letters entered the public domain yesterday.

The first is from Gove and it is in respect of article 16 of the Irish protocol.

2020_02_02_-_Letter_from_CDL_to_VP_Šefčovič

As with any Gove letter the first task is to strip off the all the performative politeness, as one would do with the needless extra wrapping of something that may be useful underneath.

But what I saw as notable about this letter was not the supposed main subject of the botched invocation of article 16 by the European Union – on which the United Kingdom has a fair point, though here it is being shamelessly exploited – but a comment made by Gove in passing.

‘We were not consulted on this Regulation either.’

There was no formal need for the European Union to have consulted the United Kingdom on this new regulation.

The previous version of the regulation – which had cited article 16 – did mean that the United Kingdom should have at least been notified in advance.

But this was not the case with the replacement regulation.

The revised regulation was entirely a matter for the European Union.

And the reason why it was entirely a matter for the European Union is, well, because the United Kingdom has departed from the European Union.

Not being part of the formal decision-making, policy-making and law-making of the European Union is what Brexit means.

Of course, Brexit also means many different other things to different people.

But the one thing which Brexit has to mean is that the United Kingdom is no longer part of those institutions of the European Union that make decisions, or formulate and apply policy, or adopt and implement laws.

This is the necessary implication of the United Kingdom ‘taking back control’.

What did Gove and other Brexit-supporting politicians think Brexit meant?

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Another letter from another minister was from George Eustace.

Here the United Kingdom government is ‘surprised’ that the European Union has ‘changed its position’.

One fears that the United Kingdom will have to get used to be being ‘surprised’.

(Though any minister or official who is genuinely ‘surprised’ by what a counterparty does is not doing their job properly – as the awareness of and planning for possible contingencies is the basis of any sound public policy.)

Again, as with Gove’s letter, the United Kingdom government does not appear to realise that the United Kingdom is now merely a ‘third country’ for the purposes of European Union decision-making, policy-making and law-making.

Unless the European Union has agreed otherwise in the withdrawal or the trade and cooperation agreements, the interests of the United Kingdom has no more purchase on the conduct of the European Union than any other non-member of the European Union.

That is what Brexit means.

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There will be, no doubt, many more complaints from United Kingdom ministers – and from their political and media supporters – about the European Union making decisions, formulating and applying policy, and adopting and implementing laws, that are not to the advantage of the United Kingdom.

Supporters of Brexit tended to emphasise the positive-sounding ‘taking back’ of ‘control’ – but the immediate and necessary consequence of Brexit is instead the formal exclusion of the United Kingdom from general European Union decision-making, policy-making, and law-making.

And so, just as ministers complaining about adverse judicial decisions is the sound of a working constitution, the noises of ministers unhappy about what the European Union does and does not do is the sound of Brexit.

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FOLLOW-UPS

From time to time, this blog will link to interesting things relevant to previous posts.

On yesterday’s post on the Queen’s Consent, please see these further Guardian reports (here and here) and also this informative article by Adam Tucker, the leading constitutional law academic on the subject.

On the post on ‘Sovereignty’ and Brexit, many have pointed to this post by Alastair Campbell.

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The Queen’s Consent – a strange and obscure feature of the constitution of the United Kingdom – and why it should be abolished

8th February 2021

This post is about a thing of which you may not have heard.

The Queen’s Consent.

No, not that.

The Queen’s Consent is instead an odd and generally unknown feature of the constitution of the United Kingdom.

It is in the news today because of some investigative reporting by the Guardian newspaper.

The news report is here and their explainer about the Queen’s Consent is here.

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So what is the Queen’s Consent – and why, if at all, does it matter?

Let us start with what it is not.

The Queen’s Consent is not the ‘royal assent’ that is given to a bill passed by parliament that transforms it, by legal magic, into an act of parliament.

True, the royal assent is itself not widely understood.

Many think it is the queen herself that signs the legislation, but royal assent to legislation is done on the monarch’s behalf (and the last monarch to give royal assent personally was Victoria).

But Queen’s Consent is a different constitutional beast.

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Queen’s Consent is the right of the monarch (and the heir to the throne) to be consulted on – and thereby to veto – any legislation that affects the private interests of the crown.

Imagine if the constitution of the United States provided formally for the president of the day – Donald Trump or otherwise – to intervene in congress to stop or to amend proposed legislation that affected the financial interests of the president or the president’s family.

That is what the Queen’s Consent provides for in the United Kingdom.

It is a structural right to lobby beyond the dreams of any cynical Westminster ‘public affairs’ firm.

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There are a couple of things to note before we get onto just how strange this constitutional device is.

First, this is not about placing the crown beyond or above the law – it is instead (ahem) ‘upstream’ from the law being in place.

It is about being able to shape the law before it takes any effect.

Second, it is not about the public powers of the crown – the so-called ‘royal prerogative’ though the crown also has the right also to be consulted about legislation that affects those powers.

This is about the right to be consulted about proposed laws that affect the crown’s private interests rather than its public powers.

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And now we come to four strange things about the Queen’s Consent.

First – and notwithstanding today’s front page splash in the Guardian – a good deal about the Queen’s Consent is in the public domain, hiding in plain sight.

It is just that few people know about it or care.

In the cabinet office’s guide to legislation for civil servants it warrants an entire chapter.

There is also an entire 32-page pamphlet devoted to the topic for the benefit of those who draft legislation.

The detailed ‘Erskine May’ book of authority on parliamentary procedure also has a section on the subject.

(Look carefully at the wording of what Erskine May says here.)

And in 2014 there was even a parliamentary select committee report on the practice.

But unless you are a constitutional obsessive you would, however, not be aware of any of this.

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The second curious feature of the Queen’s Consent is perhaps the most extraordinary one.

The Queen’s Consent has no legal basis whatsoever.

There is no statute, nor even (it seems) any parliamentary resolution.

It is instead is something that is just, well, done.

If you scroll back up you will see that even Erskine May does not even offer any authority for the procedure.

And if you look at the practitioner’s legal encyclopaedia Halsbury’s Laws of England the authority that is given for the practice is Erskine May.

The 2014 select committee took evidence from specialists in parliamentary procedure and constitutional law experts – and the select committee could not identify any legal basis for the practice.

The only (supposed) authority is that it is ‘long-established’.

Given that the parliamentary bible Erskine May insists that the Queen’s Consent is ‘required‘ one would hope (and even expect) there to be some legal basis for the consent, but there is none.

To the extent that the Queen’s Consent has any formal basis at all, it is entirely based on parliamentary procedure.

And this means that it would be easy to abolish, for what is giveth by parliamentary procedure can be be taketh away by parliamentary procedure.

No law would need to be passed at all.

The queen would not need to be consulted, either by the Queen’s Consent or otherwise.

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The third oddity about the Queen’s Consent is similar to the second.

For just as there is no visible legal basis for this structural bias, there is also hardly any visible effect.

It is all done in secret.

And this is why today’s Guardian report has some significance.

It appears to be a documented example where the Queen’s Consent was used to actually shape legislation.

Yes, it is from nearly fifty years ago.

And yes, it is partly dependent on a 1975 speech from Geoffrey Howe in parliament, who delightfully savages us like a dead sheep all these years later.

But – given the secrecy that cloaks the use of the Queen’s Consent procedure, and the general restrictions on official records in the United Kingdom – that is the best evidence we are likely to readily get in practice.

Some will note the lack of evidence of this formal step having any effect and will contend from that lack of evidence that the formal step is merely a formality.

That there is nothing to look at here, and that there is nothing for us too worry our heads about.

But.

The evidence we do have indicates that the process is taken seriously and is intended to be practical.

Chapter 6 of the guide for those drafting legislation is insistent that notice be given to the court with sufficient time for it to have effect – and also that it should not be done prematurely.

None of this would be relevant, still less stipulated, if the stage was merely formal and ceremonial.

Those responsible for legislation are reminded again and again to make sure that the stage is treated so that it is efficacious for the crown.

Here it is worth noting that until fairly recently this guidance was hidden from public view using the excuse that it was covered by legal professional privilege – from the 2014 select committee report:

Steers on mere ceremonial steps are usually not anywhere close to being subject to legal professional privilege.

A further indication that the Queen’s Consent is a consequential stage rather than some ceremonial gimmick is the sheer detail of what has been and can be covered.

None of this would make sense if the Queen’s Consent was a mere formality.

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The fourth curious – and somewhat quaint and amusing – feature of the Queen’s Consent is how it make a private solicitors’ office a formal part of the constitution of the United Kingdom.

You would think this elevated role for a private individual this was the stuff of fiction – like George Smiley visiting Connie Sachs at her country cottage, or Sherlock Holmes visiting his brother at the Diogenes Club:

‘I did not know you quite so well in those days. One has to be discreet when one talks of high matters of state. You are right in thinking that he is under the British government. You would also be right in a sense if you said that occasionally he is the British government.’

But it is there in black and white.

For this formal stage of the Queen’s Consent a letter has to be sent to a private solicitor in Lincoln’s Inn Square:

The ‘language of the letters should be formal in nature’ – so presumably a bill could be frustrated if ‘Dear Sirs’ was followed by an incorrect ‘Yours sincerely’ – or even, gods forbid, there was not a ‘.’ after ‘Mr’.

It is all rather silly.

But what is not rather silly but rather serious is that that this is not to a lawyer in any public capacity in the royal household, and still less to the government’s own treasury solicitor, but to a private solicitor professionally charged with protecting and promoting private interests – and that the whole procedure is geared around the convenience of the private solicitor obtaining and then executing instructions from that solicitor’s private client.

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And this being England – and this is more an English trait rather than a British one – there is no express mention of ‘veto’ in any of the official documents.

The language used is in terms of a consent that is ‘required’ but the implications of the consent not given are left unspoken.

In practice, and given the lack of evidence of the consent being formally withheld, what this means is that the crown is given the right and opportunity to shape prospective legislation – or in the case today disclosed by the Guardian – to make alternative arrangements before the legislation passes.

The question is not about what happens if consent is not given, but what things need to change for the necessary consent to be given.

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There will be some who, even with all this information, will just shrug with a ‘so what?’.

There is no evidence – at least recent evidence – of the practice doing any harm.

But.

If the practice is, in fact, a mere formality then nothing will be lost with its abolition.

And if the practice does – as the procedure implies – have real effects, then it also should be abolished.

There is no good reason why the head of any state should have the privilege of the protection and promotion of their private interests by their private lawyer as a formal part of the law-making process. 

This would be wrong it had been for the benefit of President Trump’s family for bills before congress, and it is just as wrong here.

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Four examples of Prime Ministerial power – how Boris Johnson in fact ‘did everything he could’ for there to be a trade barrier down the Irish Sea

4th February 2021

You will no doubt have an opinion on Boris Johnson, the current prime minister of the United Kingdom.

For my part, the best and most insightful depictions of Johnson as a politician are this piece by Marina Hyde and this by Rafael Behr.

This post, however, will look at the prime minister not just as politician but also through the lens of constitutional law and practice – and, in particular, will examine one statement he made yesterday.

Everyone who cares knows that Johnson will not do – and has not done – ‘everything’ to avoid a barrier down the Irish Sea.

The fact that this statement is untrue is by itself neither here nor there: more than most politicians, Johnson knowingly says false things.

But for this blog, what is interesting about this lie is that its falsity engages four distinct examples of prime ministerial power.

For Johnson did everything as a prime minister for there to be a barrier down the Irish Sea.

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Within a parliamentary system such as the United Kingdom, and with the constitutional theory that executive power flows from the crown, there are limits to what any prime minister can and cannot do.

But the Irish barrier question shows the ways in which a prime minister can exercise power.

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First, a prime minister can change and set government policy.

And here Johnson broke with the policy of his predecessor on the (once infamous) ‘backstop’ in the withdrawal agreement.

Johnson, of course, did this for cynical reasons of political convenience – but it is a decision that only a prime minister could have made.

And Johnson did.

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Second, a prime minister can enter into international agreements.

In constitutional theory, this is the prime minster using the royal prerogative to enter into those international agreements.

So having reversed the policy of his predecessor, he proceeded to agree the withdrawal agreement providing for a trade barrier down the Irish Sea.

And again, this was something he could only have done as prime minister.

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Third, a prime minister – as leader of the party that wins a general election – can win a mandate for their policies.

Currently, calling a general election is outside the powers of a prime minister, by reason of the Fixed-term Parliaments Act.

But when there is a general election, and that election is won, the prime minister (and the winning party) then enjoys a mandate for their manifesto commitments.

And this mandate is constitutionally significant – for example: any policy with such a mandate cannot be blocked or delayed by the house of lords.

The (then) ‘oven-ready’ deal was mandated by the 2019 general election.

So, again, a mandate was something Johnson achieved as a prime minister (and which his predecessor failed to do with the 2017 general election).

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And fourth, a prime minister is ultimately responsible for the government’s programme of legislation.

So: having reversed policy, entered into an agreement with the European Union giving effect to that new policy, and having won a mandate for the policy in a general election…

…the prime minister now ensured that the policy was implemented into domestic law with an act of parliament.

(Legislation that, of course, was pushed through with minimal scrutiny using the government’s newly obtained overall majority so as to ‘Get Brexit Done’).

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That there is now a trade barrier in the Irish Sea is a perfect illustration of the various powers of a prime minister under our constitutional arrangements.

The trade barrier in the Irish Sea was Boris Johnson’s policy (which he reversed from his predecessor), which he agreed with the European Union and for which won a mandate in a general election, and that he then ensured was enacted into domestic law.

There was nothing more Johnson as prime minister could have done for there to be this trade barrier in the Irish Sea.

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How Theresa May casually decided that Brexit meant the United Kingdom would leave the single market and customs union – the fascinating and revealing interview with Philip Hammond

3rd February 2021

One response to the news that former chancellor Philip Hammond has given a candid and critical interview about the Brexit policy (or lack of policy) of the Theresa May administration is to sneer and jeer, announce that he should have resigned rather than be party to it, and to ‘like” and RT some tweet saying so.

And then to not give it a further thought.

Another, more worthwhile reaction is to look out the interview, and to read and consider it carefully.

And in doing so, you should compare what Hammond says now with your recollection of what Brexit seemed like at the time, from the outside.

What emerges is a picture that many of us onlookers – conscious of the issues at stake but unimpressed by the government’s shallow public messaging – suspected was true all along.

The interview – which is part of an impressive series of interviews with ‘witnesses’ of Brexit by UK in a Changing Europe – should be read in full by anyone wanting a real understanding of what happened within government on Brexit.

But below are some examples which, at least for me and my commentary, substantiated what some of us believed to be the case at the time – including about the casual nature of the huge decision to leave the single market and the customs union.

The transcript of the interview is here.

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On the creation of the pop-up government departments, the Department for Exiting the European Union and the Department for International Trade, Hammond says:

‘Creating a new Government department, frankly, is a pretty cost-free signalling mechanism for an incoming Prime Minister. So, the Department for Exiting the European Union – a ludicrous notion, absolutely ludicrous; a rookie civil service trainee could tell you that that was a stupid idea – and the Department for International Trade, were both gestures.

‘They were ways of bringing in clear, committed Brexiteers to the Government, and plonking them in a place where they could assert their views, rally their troops, and, she hoped, provide a focal point for the hard-line Brexiteers in the parliamentary party. As well as finding out the hard way how difficult this was all going to be in practice.’

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On the botched re-negotiation that preceded the referendum (which was so limited because it misunderstood what the European Union could offer without a treaty change):

‘We all interpreted German pragmatism as support for a more British view of the future of Europe. That was clearly not correct, so we definitely overestimated the flexibility of the Europeans.’

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And perhaps most significantly, on the run-up to the fateful October 2016 conservative party speech in Birmingham – and its aftermath:

‘I was completely stunned by the speech that she made at the Conservative Party Conference in October 2016. I hadn’t seen the relevant part of it in advance. I’d had no input to the speech. Nick Timothy kept me completely away from it. […]

‘I was completely and utterly horrified by what I felt was almost a coup: a definition of Brexit without any proper Cabinet consultation at all. 

‘My assessment of Theresa May’s Prime Ministership, in terms of Brexit, is that she dug a 20-foot-deep hole in October 2016 in making that speech and, from that moment onwards, cupful by cupful of earth at a time, was trying to fill it in a bit so that she wasn’t in such a deep mess. […]

‘It was a disaster on all fronts, a total unmitigated disaster that scarred her Prime Ministership and should have sealed Nick Timothy’s fate, but I think she only realised later how badly that had constrained her ability to deliver any kind of practical Brexit at all.’

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What this interview indicates – if not demonstrates – is how crucial those first few months were after the referendum were to the shape of Brexit, from June to October 2016.

That was when, in my view, the battle for Brexit was won and lost.

Until the conference speech it was possible to conceive of a number of different possible Brexits that could follow the referendum result.

(Or in my (incorrect) view at the time, that it was possible that the thing would just be delayed and delayed, as the sheer magnitude of the task became scarily apparent.)

But after the October speech, the only Brexit which was politically likely would be the absolute version with the United Kingdom leaving the single market and the customs union.

And the only way that such a Brexit could have been stopped, again in my view, would have been if the respective leaders of the labour, liberal democrat and other opposition parties had handled the prospect of a general election differently in late 2019.

In essence: in the whole of the story of Brexit so far, only (a) June to October 2016 and (b) November/December 2019 were the real turning points where Brexit could have turned out substantially different after the referendum.

The interview with Hammond, in particular, reminds us that there were non-Brexiter ‘pragmatists’ as well as (in his word) ‘refuseniks’ in those first few months after the referendum.

And notwithstanding the ‘Brexit means Brexit’ slogan of May in her party leadership bid of that summer, it was still possible to conceive of different outcomes.

The pragmatists could have prevailed.

But.

But something happened – a decision was casually made that will turn out to be as consequential for the United Kingdom as any other immensely important decision in our history.

And that decision was made by a prime minister who, on Hammond’s account, did not understand the import of her decision, and without reference to either cabinet or parliament.

An extraordinary moment, and one which is becoming more extraordinary over time.

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For every Bingham there will be many more Hardings – why the law of public procurement matters – by a partial and prejudiced public procurement lawyer

2nd February 2021

Like constitutional law and practice, the law and practice of public procurement has recently been exciting.

And this is not a good thing, for also like constitutional law and practice, the law and practice of public procurement should be dull.

But unlike constitutional law and practice – the elements of which like the crown, parliament and the courts are at least well known – the elements of the law and practice of public procurement are not so well known.

Indeed, many commercial and public lawyers can go through their careers and never have to deal with a public procurement issue.

And many commercial companies – all potential government suppliers – will never engage with the public sector.

Public procurement is (usually) a minority interest.

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But.

Public procurement – that is, in general terms, the purchase by public bodies of goods and services and works (that is, major projects) from the private sector – has become rather politically controversial.

And with Brexit, this public prominence is likely to continue.

So it seemed worthwhile to set out to non-lawyers – and other lawyers with no direct connection with public procurement – to set out some basic points about public procurement, from the subjective perspective of someone who has had some experience in public procurement for twenty years.

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The starting point, at least in the United Kingdom, is that central government would in principle be able to lawfully buy anything from anyone at any price and on any terms – but for the law of public procurement.

This is because – and here comes some constitutional law mumbo-jumbo – the crown is regarded as a legal person with full capacity.

And just as you and I are able, as natural persons, to enter into contracts, so is the crown.

Of course, it is not Elizabeth Mountbatten-Windsor who is signing contracts for things from toilet rolls to nuclear submarines as part of some extraordinary Waitrose delivery.

But in principle, the crown is able to enter into any contractual obligations it so wishes.

The agreements are, in turn, usually entered into on the crown’s behalf by government departments – usually in the name of the relevant secretary of the state.

(Here it can get complicated, as many secretaries of state are regarded by the law as ‘corporations sole’ that can hold property and so on.)

And so this means that government departments are, in principle, are able to enter into any contractual obligations they so wish.

Apart from central government, there are many other public bodies with a mix of legal forms – from bodies established by royal charter to corporations set up by statute – and these bodies also can, in (very) general terms, enter into contracts as readily as any natural person.

(There used to be many cases where certain transactions were held to be ‘ultra vires’ the powers of local authorities, but legal changes have meant that this is less likely to be the case now.)

And this is the basis of the law of public procurement in the United Kingdom: that but for the law of public procurement, public bodies can in general lawfully enter into transactions freely.

In this way, the law and practice of public procurement should primarily be seen as like the ropes around Lemuel Gulliver or King Kong – preventing public bodies from doing what they otherwise would do.

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So what are the restraints of public procurement?

In theory, the restraints are of two kinds.

First, there are general principles – at least under the law of the European Union (which has now been adopted as domestic law) and the rules of the World Trade Organisation.

Tenders should be advertised and open to all-comers; selection criteria should be published; public bodies should not discriminate in favour of incumbents and domestic companies; tenderers should be treated equally; procurement exercises should be competitive; there should be transparency; and there should be remedies in the event of unfair treatment.

All very fine and commendable.

And some would say that these principles really should be enough, and that as long as a public body accords with these principles, the public body should be able to be able to procure as it wishes.

Just as, say, an employer can recruit who they wish, as long as they do not discriminate against people with certain characteristics.

But.

The law and practice of public procurement goes further than these general principles – at least for high value procurements.

Much, much further.

This is because, in addition to these general principles, there are detailed procedures prescribed for public authorities to follow.

The theory is that these detailed procedures give practical effect to the general principles, by setting out what can and cannot be done at each of the many stages which a public procurement exercise can be broken down into.

And so behold, for example, the 122 sections and 6 schedules over 133 pages of the Public Contracts Regulations 2015.

Behold also the 178 pages of the European Union directive to which those regulations give effect – with no less than 138 recitals.

So, in practice, public procurement exercises can be long and expensive and complicated and legalistic.

And this, in turn, means that many procurement exercises are dominated by the same few mega-providers with specialist bidding teams – you know which companies, with deliberately bland and meaningless names – that can afford the lost costs of an adverse ratio of losing tenders to winning them.

The laws of public procurement can be seen as a well-intentioned way of opening up the government public procurement market that in fact makes things uncompetitive and inaccessible.

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There are further problems.

Procurement exercises that start with specifications developed by officials can often mean that providers are expected to provide bespoke (and thereby expensive, unrealistic, risky and untried) products and services rather than commercially off-the-shelf products and services.

And suppliers can exploit their relative power at the final stages of a procurement exercise, or after the contract has been entered into, to remove or vary contractual protections for the public body.

Public bodies do not enforce the contractual rights that they do have.

There is also the the issue of the revolving doors between public bodies and purchasers, with many on both sides knowing each other far better than, say, the officials will know those in other parts of the public body.

And so on.

Many problems.

But.

And this is a big but.

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As one politician once said of a certain political system, it is the worst form of government, except for all the others.

And the same can be said of public procurement.

Anyone who has been involved in the world of public procurement is alert to the problems.

And most public procurement officials do the best they can with the tools that they have got.

The problem is that, if it was not for the law of public procurement, with all its faults, the practice of public procurement would be worse than it is.

If there were no detailed processes for high-value procurements, then there would be even more of a chumocracy, more corruption, more political rather than commercial decisions, more incumbent bias.

The striking thing about the law and practice of public procurement in the United Kingdom is not that there are abuses but that, relatively speaking, there are so few.

If the law of public procurement was stripped away, even just to general principles, there would be little in practice to prevent a free-for-all with public cash.

The challenge for those, like me, who are critical of the law and practice of public procurement is to work out a better (or less bad) way.

And that is hard.

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Yet sometimes public procurement exercises do need to be flexible.

The detailed processes sometimes need to be set aside.

The current political controversy over the procurement of vaccines seems to show the merits of the quick decision-making of the United Kingdom over the ponderous and inefficient approach of the European Commission. 

If this is the case, then: hurrah!

But for every Bingham there will be many more Hardings.

For every single successful urgent and informal procurement there will be many more botched and extravagant ones.

And this is because there are huge amounts of cash at stake – and public bodies are reliable payers – and where there is such money, there will be corruption and waste.

*

All large-scale procurement is not easy.

Large procurement exercises in the private sector can also be highly problematic – it is just that they are less likely to feature in the news.

This, in many ways, is not an especially ‘public sector’ problem.

And we should, generally, be glad that the law and practice of public procurement works as well as it does.

Yet, there are ways it could be better.

As this blog recently averred, there is actually no good reason why the terms of public contracts should be confidential – at least in respect of allocations of risk and sanctions for non-performance.

Public bodies should also be more ready to use the powers and sanctions they do have under agreements – as it is, it is rare for any public body to ‘go legal’ in a way that a private sector company would do in a similar way with a similar value contract.

There are grounds for legitimate concern that many high-value, elaborate, time-consuming and cumbersome procurement exercises seem perfectly tailored for the benefit of the tender departments of a certain type of mega-suppler.

In essence: far more transparency, and more realism about how current law and practices are abused.

(Leaving the European Union may also be an opportunity for the United Kingdom to revisit the complexity of our domestic procurement regime – though this opportunity will no doubt not be used well.)

*

What should be exciting in politics is the democratic contest between priorities and policies.

And once a priority has been asserted and a policy adopted, the implementation of that priority and policy should not itself be a political issue. 

This is why public procurement should be dull.

(Similarly, it is rarely a good thing when constitutional law, which sets the agreed parameters of political action, becomes the primary focus of sustained political attention, as this means things are not well in the polity.)

But an awareness of the law and practice of public procurement, and not only of its faults but the greater faults which it prevents, should be part of the stock of civic knowledge of every citizen.

Dull things can still be important things.

*****

The title of this post alludes, of course, to this.

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Legal words v everyday words – how can the killing of six prisoners between the presidential election and inauguration not be a ‘cruel and unusual’ punishment?

27th January 2021

Over at Prospect my column this month is on the grim topic of capital punishment and how former President Trump revived federal executions in the last seven months of his presidency – for my article click and look here.

In this post today I want to expand on the issue I touch on in the introductory paragraphs of that article: what is a ‘cruel and unusual punishment’?

*

The reason this matters, of course, is the eighth amendment to the constitution of the United States, the relevant text of which provides: 

‘nor cruel and unusual punishments inflicted.’  

So if a punishment is cruel and unusual (and note it is ‘and’ and not ‘or’) then it is not only prohibited but also unconstitutional.

Some would contend (in my view rightly) that any use of the death sentence is, at least in modern times, a ‘cruel and unusual punishment’.

But here another part of the constitution is engaged.

The fifth amendment provides, among other things:

‘nor shall any person…be deprived of life, liberty, or property, without due process of law’.

This means that the constitution envisages that a person can be deprived of their life by process of law.

And as United States prosecutors, and supporters of the death penalty often point out, the fifth and the eighth amendments were adopted at the same time (as part of the bill of rights) and thereby should be read together.

Of course, there is a certain irony – cruel perhaps – that the fifth amendment was intended to have a generally liberal effect now has, in respect of capital punishment, an illiberal effect.

So the constitutional position is that capital punishment is permitted (fifth amendment) as long as it is not ‘cruel and unusual’ (eighth amendment).

*

In my Prospect column I argue, by the modern everyday meaning of the words ‘cruel’ and ‘unusual’, that the six executions after Trump was defeated and before the new President Joseph Biden was inaugurated were indeed unusual and cruel.

This argument has three bases.

First, once Trump was defeated it was plain that there would be a new president within weeks who was pledged to end federal executions.

And so if the executions did not take place by 20th January 2021 then the prisoner would not be killed.

They would still be alive today.

Second, federal executions are not usual

Indeed, before Trump there had not been any federal executions for seventeen years and, before then, only three executions since 1966.

Click and have a look at this table.

Of course, executions take place in individual states – though twenty-two states have abolished the death penalty and in a further thirteen states there is either a formal or an informal moratorium.

But at a federal level executions were not, between 1966 and 2020, usual.

And by definition, what is not usual is unusual. 

Third, these final six executions were (especially) cruel.

The prisoner – and those charged with killing the prisoner – knew that there was now a race against time.

This deliberate putting to death of a human being had to be done within days, if it was to be done at all.

The circumstances of the six executions after the election but before inauguration indeed amounted to the application of mental torture as part of the punishment.

*

But.

Although words have everyday meanings when those words are in a formal legal instrument, those words also have special legal meanings.

And the words ‘cruel’ and ‘unusual’ have been considered by the United States courts again and again.

Caselaw accumulates like barnacles on a shipwreck, so that little or nothing can now be seen of the original vessel.

The general position now is that whether a punishment is ‘cruel’ goes to the technique used at the point of death (and not the period leading to the execution), and if the punishment is still in use then it cannot be ‘unusual’ (which is fairly circular argument).

(The latest significant case in this grisly caselaw is here.)

What it is plain is that the wording of the constitutional prohibition is not autonomous – that it cannot be used in any given situation, free from the weight of caselaw.

A thing is only ‘cruel’ and/or ‘unusual’ if it accords with what these words mean as a matter of 230 years of caselaw, and not what those words mean in everyday discourse.

And this is both a merit and a flaw of placing rights in formal written instruments, such a a bill of rights.

On one hand, a person can point to the right and say with certainty that they have these fundamental protections; but on the other hand, formality can quickly become rigidity.

There is no easy solution to this problem of how one protects rights with a living, evolving legal instrument.

*

None of this is to aver that the executions between the election and the inauguration were unlawful and unconstitutional – the fact that the United States supreme court did not prevent those killings indicates that the punishments were lawful and constitutional.

Nor does this post contend that the constitutional law of the United States can easily be recast so as to render such executions as unlawful and unconstitutional.

The purpose of this post is to illustrate the gap between everyday language and precise legal terminology: that, in these instances, things that are plainly cruel and usual are not ‘cruel and unusual’.

This leads to the wider point about using the law to guarantee rights and freedoms: a general legal instrument quickly attracts caselaw, and that caselaw scopes and often limits the meaning of that instrument.

And so one can end up with the vile spectacle of six human beings being deliberately slaughtered before 20th January 2021 because they would be safe from slaughter if they managed to live beyond that date, and that this horrific episode was, as a matter of law, neither cruel nor unusual.

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The fateful Bloomberg speech of 2013 – contextualising *that* speech by David Cameron eight years later

24th January 2021

Eight years ago yesterday the then prime minister David Cameron gave a speech at Bloomberg.

The speech was to have significant consequences.

The speech can be read here and can be watched here:

And, for background, there is also this Wikipedia page.

*

What should make of Cameron’s Bloomberg speech eight years later?

The speech is undeniably important in the telling of the story of Brexit.

Indeed, when historians come to write of the causes of Brexit, this speech is likely to be be emphasised as a key short-term cause.

It was the first of a sequence of events that led to the Brexit we now have: the Conservative manifesto commitment for a referendum; the 2015 general election; the return of an overall Conservative majority; the referendum bill, the (supposed) ‘re-negotiation’; the calling of the referendum; the (lacklustre) government campaign for remain; the referendum result; and so on.

In terms of a linear sequence of events, the Bloomberg speech would seem to have more reason than many others to be the prime-mover – at least in the short-term.

The first of an apparent chain reaction of political explosions, some with bigger bangs than others, that lead to the biggest bang of all: the rushed departure of the United Kingdom from the European Union.

But.

*

As Voltaire once said somewhere, history is a box of tricks we play upon our ancestors.

And so what looks neat and linear in hindsight can often be misleading.

This is because although historical narratives are (necessarily) linear if not always neat, past events are complex and invariably messy.

Accordingly, to reckon the significance of a politician’s speech – or of any text or any other speech act – one needs to place that text in contexts.

Otherwise one can fall into the error of thinking, in this particular case, that had Cameron not made that speech in 2013 there would not have been the Brexit we now have, or indeed perhaps no Brexit at all.

*

One context for the speech is the political situation of the Conservative party in and around 2013.

The party was in a coalition government with the Liberal Democrats, and the party itself had not had a majority in the house of commons since the early years of the premiership of John Major some twenty years before.

And in 2011 to 2013, the Conservative party looked as if it was being out-flanked by the United Kingdom Independence Party (Ukip).

So until and unless the Conservative party addressed the reasons for Ukip support – either by facing Ukip down or by engaging with its politics – there was a real prospect that the Conservatives would go yet longer without a parliamentary majority.

The Conservative chose to share the politics of Ukip: to make the departure of the United Kingdom from the European Union a real possibility.

(And the general election results of 2015 and indeed 2019 indicate that this Conservative political strategy has worked.)

Of course, had Cameron not made the Bloomberg speech in 2013, the surge in Ukip support and its political threat to the Conservatives would not have gone away.

Even with that speech, and the Conservative manifesto commitment of a referendum, Ukip performed strongly (at least in terms of votes) in the 2013 local elections, the 2014 European Parliament elections and the 2015 general election.

As such the Cameron speech was not a cause but an effect, and had a Conservative leader not done something in response to the rise of Ukip support eight years ago yesterday, there would have been something else before not much longer instead.

Some would say that a Conservative leader could have taken on the Ukip threat – like, say, the then Labour leader Neil Kinnock did with Militant in the 1980s – but that was not realistic.

The Conservative party – like the Labour party – had not made a positive case for the European Union for decades: to the extent the European Union impinged on domestic politics, it was invariably in terms of what the United Kingdom had opposed or had opted out of.

So as long as the Conservatives sought to obtain a parliamentary majority and Ukip would challenge that, then the place and timing of the offer of any referendum was incidental.

And given that the issue of membership of the the European Union would dominate the general election of 2015, it is quite plausible to see a referendum with a Leave victory happening afterwards, even if no speech had been given at all, at Bloomberg in 2013 or elsewhere.

*

Another context for the 2013 Bloomberg speech and its referendum commitment was the casual approach of Cameron to constitutional matters generally and referendums in particular.

There had already been a United Kingdom-wide referendum on the electoral system in 2011 which Cameron and other opponents of that electoral reform had defeated comfortably.

Cameron and the Conservatives were also bullish about the impending Scottish referendum (that the United Kingdom government had then recently agreed would happen and which took place in 2014).

Referendums must have seemed a doddle.

And, in any case, that there would be a referendum on any future European Union treaty ‘giving powers to Brussels’ was part of the law.

This general lack of constitutional seriousness can be evidenced in other examples from around the same period: in 2014, the Conservatives put forward an especially flimsy proposal for repeal of the human rights act and in 2015, Cameron sought fundamental reform of the house of lords just because of a defeat on a tax credits proposal.

The historical caution of the Conservative party in respect of constitutional matters was non-existent by the time of the leadership of Cameron.

And so eight years ago yesterday for Cameron to make a commitment to a referendum of such potential constitutional import was not a big thing for him or most of his party.

He probably put no more serious thought into the actual implications of a referendum defeat than he would have put into an essay on the topic of referendums on a PPE degree course.

In hindsight one can now see the serious consequences of such a referendum – not least how it can create a ‘mandate’ that undermines not only effective parliamentary scrutiny but the very doctrine of parliamentary supremacy.

But in 2013 this was not given a second thought, nor indeed much of a first thought.

*

A third context for the speech eight years ago yesterday is not provided by a thing, but an absence of a thing.

In the late 1980s, the 1990s and the early 2000s there was such a thing as ‘Euro-scepticism’.

(I know this because I happen to have been a Maastricht-era Euro-sceptic.)

This approach had two broad features.

First, it insisted that it was primarily about being wary of the direction of the European Economic Community (and then European Union).

In this, the guiding text was another speech by a Conservative leader, at Bruges in 1988, where Margaret Thatcher said:

“We have not successfully rolled back the frontiers of the state in Britain, only to see them re-imposed at a European level with a European super-state exercising a new dominance from Brussels.”

(Euro-sceptics, however, tended to ignore a later part of the same speech where Thatcher also said “Britain does not dream of some cosy, isolated existence on the fringes of the European Community. Our destiny is in Europe, as part of the Community.”)

The second feature of Euro-scepticism was that it was often a reaction to some new treaty advancement: Maastricht, Amsterdam, the (proposed) constitutional treaty, Lisbon.

But when this juggernaut of new treaties came to a halt with the treaty of Lisbon of 2007-9 – there have not been any such significant treaties since – Euro-scepticism lost the yin to its yan.

The development of the European Union entered into a settled stage.

And Euro-scepticism, as it had existed, served no purpose – the question became not about how the latest (supposed) treaty push towards integration should be countered but about membership itself.

There was now just a binary choice.

Any referendum would not be (and could not be) about any new treaty – as envisaged by the 2011 referendum legislation – because there were no new treaties.

The only thing left for a referendum to attach itself to was the question of membership itself.

And so a further context for the 2013 speech and the 2016 referendum is that – paradoxically – the end of substantial formal moves towards European Union integration at Lisbon meant that there was more risk that membership of the European Union was in question.

Those opposed to the European Union had now the cake of no further integration, and the supper of potential withdrawal.

*

There are many other contexts – geopolitics, migration, the credit crunch and austerity, and so on.

This post is not and does not pretend to be exhaustive.

But as with another post at this blog, on counterfactuals, this post avers that Brexit was not about just one bad decision.

There are many ways things could have happened differently and the United Kingdom could still today be in a post-Brexit predicament.

(And alternatively, there are no doubt certain decisions which could have led to substantially different outcomes – such as the decision by former prime minister Theresa May to rule out membership of the single market and the decisions by opposition leaders in late-2019 to nod-along with a general election.)

But the way Brexit did happen, at least in the short-term, followed a fateful speech eight years ago yesterday – when Cameron opened a box of tricks to play upon his contemporaries.

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What codification of Roe v Wade means and why President Biden is right to support it

23rd January 2021

Yesterday the twitter account of the new president of the United States tweeted about abortion rights:

Around the same time the following statement was published by the White House:

“Today marks the 48th anniversary of the U.S. Supreme Court’s landmark ruling in Roe v. Wade.  

“In the past four years, reproductive health, including the right to choose, has been under relentless and extreme attack.  We are deeply committed to making sure everyone has access to care – including reproductive health care – regardless of income, race, zip code, health insurance status, or immigration status. 

“The Biden-Harris Administration is committed to codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe.  We are also committed to ensuring that we work to eliminate maternal and infant health disparities, increase access to contraception, and support families economically so that all parents can raise their families with dignity.  This commitment extends to our critical work on health outcomes around the world. 

“As the Biden-Harris Administration begins in this critical moment, now is the time to rededicate ourselves to ensuring that all individuals have access to the health care they need.”

*

But what would this “codification” actually mean?

And why should it be welcomed?

The starting point is the 1973 decision of the United States supreme court in Roe v Wade.

That decision held, in effect, that access to an abortion is a fundamental right under the constitution of the United States.

And as a right within the constitution then it is not open to any individual state to prohibit access to an abortion absolutely.

The decision did not preclude regulation of such access by individual states but they could not formally – or practically – ban it altogether.

The ultimate right – subject to regulation – of access to an abortion was that of the woman, and this right could not be removed by any state legislature.

*

From a liberal perspective, it does not ultimately matter what the legal basis is for the fundamental right of access to an abortion.

The basis in the United States could be a supreme court judgment, or a provision in the constitution, or a federal law, or whatever.

The important thing is that there is a right and that it is effective and can be enforced.

That said, there is considerable merit in placing the right on a firmer basis than just a supreme court decision.

What a supreme court giveth, a supreme court can taketh away.

And although conservative judges in particular believe (supposedly) in the principle of stare decisis (that is, precedent) they often find ways to distinguish and set aside precedents when those precedents are liberal.

The conservative packing by former president Donald Trump of the supreme court and the federal judicial benches generally mean that it is increasingly likely that Roe v Wade could either substantially limited or even reversed.

And this is partly because the privacy right that the supreme court articulated in 1973 as the basis of the right of access to an abortion is not actually an express provision in the constitution.

It is a right which the 1973 supreme court found to be necessarily implicit in the constitution.

But the general problem with any right judicially implied into a legal instrument by one court is that it is conceivable that another court will not make the same inference.

And although the 1973 judgment was a welcome advancement, few would say that the reasoning of the justices has been generally accepted.

So the judgment of Roe v Wade stands there precariously, awaiting an assault by conservative lawyers and judges.

And if it falls, then the constitutional right of access to an abortion falls with it.

What a supreme court giveth, a supreme court can taketh away.

*

So what could be done?

Ideally, one would want a constitutional amendment.

If the right of access to an abortion was explicitly spelled-out in, say, an amendment to the constitution then the position would be placed beyond doubt.

And then no supreme court, however constituted and motivated, could do a thing about it (without breaching the constitution itself).

But this would be unlikely in practice, if not impossible.

There would not be sufficient support in congress and certainly not from a sufficient number of states for the constitution to be amended under Article 5 of the constitution.

The next best thing, however, is codification.

This means congress placing the right on a statutory basis at the federal level.

And this would be possible because, as with any express or implied right of the constitution, there is a basis for congress to legislate.

It is not a perfect solution.

It would still be possible for a supreme court to strike down such an act of congress as unconstitutional as it is possible for any other federal legislation.

But it would fortify the right: for instead of a conservative supreme court only needing to reverse the 1973 judgment it would also require striking down federal legislation that gave statutory effect to that right.

And although a right as fundamental as access to an abortion should never depend on mere majoritarianism – for even if abortion was prohibited by every state legislature there should still be a right of access of a woman to an abortion, as that is the nature of fundamental rights – it can be argued that endorsement by democratically elected politicians would also make it more difficult for judges to overturn the relevant legislation.

*

Of course, it is at this stage only a proposal – former president Barack Obama also put forward codification only to not go through with it.

But given the recent packing of the federal benches with conservative judges and what seems to be (and without any serious doubt is) a long-term co-ordinated judicial strategy by conservatives of reversing Roe v Wade, it is prudent for the right of access to an abortion to be codified.

Rousing liberal judgments are wonderful gladdening things – but they are shaky as the sole basis for any fundamental right.

No fundamental right should depend only on a majority of judges at a certain moment in time.

Roe v Wade is a great judgment – at least in its effect, if not its reasoning – but the right it articulates is becoming more vulnerable than it needs to be, and so that right should now be codified.

For what a supreme court giveth, a supreme court can taketh away.

*****

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The United States had its cathartic post-2016, post-Trump ceremonial moment – but the United Kingdom cannot have a similar post-2016, post-Brexit moment

22nd January 2021

Two days ago the inauguration of a new president in the United States gave ceremonial form to the constitutional substance that the presidential term of Donald Trump was over.

What had been done in 2016 had, to a significant extent, been undone.

Of course, there will be things that could not been undone, such as the scale of the avoidable loss of life by reason of a flawed coronavirus policy.

The extensive conservative appointments to the federal judicial benches will take a political generation to counterbalance, if they are counterbalanced at all.

And Trumpism – populist authoritarian nationalism feeding off post-truth hyper-partisanship – certainly has not gone away, even if Trump is no longer in the White House.

But taking account of these exceptions, there was still a moment of closure: that a particular presidency was both formally and substantially at an end.

*

In the United Kingdom there will not be such a moment where one can say the consequences of the 2016 referendum vote will come to a similarly cathartic end.

In 2016, American voters (via the electoral college) elected Trump for a term of four years, while those in the United Kingdom voted for Brexit with no similar fixed term.

One decision was set to be revisited in four years, the other was not.

*

Even the (various) departure dates have not provided any sense of release.

The United Kingdom was to leave on on 29th March 2019, then 12th April 2019 or 22nd May 2019, then 31st October 2019, and then 31st January 2020 (on which date the United Kingdom technically left the European Union), and then there was a transition period which would end on 31st December 2020 (on which date the transition period did end) or 31st December 2021.

A couple of this spate of departure dates did turn out to be legally significant, but none of them appear to have had any substantial effect on the politics of Brexit.

Those in favour of Brexit appear to still be trying to convince themselves and others of its merits, and those opposed to Brexit are still seeking to demonstrate its folly.

(This is despite the ‘mandate’ of the 2016 referendum having now been discharged,  in that the United Kingdom has now departed the European Union.)

None of the various departure dates marked when those in favour of or against Brexit could say the matter is decisively over, in the same way the Trump presidency came to its obvious end.

Partly, of course, this is because of the ongoing pandemic: every political thing is now muted.

But even taking the pandemic into account, the politics unleashed by the 2016 referendum have certainly not come to anything like an end.

*

But Brexit will never be over in other senses.

As I averred in this Financial Times video, the trade and cooperation agreement between the European Union is expressly structured as a ‘broad….framework’ that can be supplemented by further agreements on discrete issues and is subject to five-yearly reviews on more fundamental issues.

 

Brexit is now a negotiation without end.

Instead of ever-closer union we now have ever-closer (or less close) cooperation.

There has not been a once-and-for-all settlement of the matter of the relationship between the United Kingdom and the European Union.

We have simple swapped one dynamic relationship for another.

*

Some of those opposed to Brexit are now waiting for a grand realisation – where a substantial number of people may wake up to what has happened since 2016 and come to their senses.

The notion is that such ‘loss aversion’ will have considerable political force and push the United Kingdom back towards the European Union – perhaps even to swiftly rejoining as a member.

This may happen – the lesson of 2016 is that many unlikely things can actually happen in politics.

But it is unlikely – the government and its political and media supporters are adept at evasions and misdirections, and voters are capable of blaming many things before they will blame their own votes.

Yet taking this as a possibility, it would not be enough.

This is because there are two constituencies that those who seek for the United Kingdom to (re)join the European Union need to win over.

The first is the United Kingdom electorate which needs to be won over to settled and sustained support for full membership of the European Union (without the benefits of the United Kingdom’s previous opt-outs).

The second, and perhaps far harder, will be winning over the European Union.

A belief that once the United Kingdom sorts itself out, that (re)joining the European Union would be straightforward is just a variant form of British (or English) exceptionalism.

Even the grandest, most dramatic domestic realisation of the folly of Brexit will not mean the United Kingdom joins the European Union again, unless the European Union also sees it as in its interests for the United Kingdom to (re)join.

Remorse, however sincere and lasting, will not be enough.

There is no reason or evidence to believe that the European Union would consider membership of the European Union for at least a political generation.

(And the United Kingdom itself may not even exist in its current form by then.)

So as Brexit is a negotiation without end, it will also be two political exchanges (the domestic debate, and the two-way relationship between the United Kingdom and the European Union) without any early or obvious end.

*

There will be no cathartic Biden-like ceremony to bring Brexit to a close.

This is because of the nature of the 2016 referendum (which, unlike the election of Trump, was not a decision for a fixed period); and because of the dynamic structure of the new relationship as set out in the trade and cooperation agreement; and because of the unsettled politics both internally in the United Kingdom and of its relationship with the European Union.

And so, to a significant (though not a total) extent, the United States was able to bring what it decided in 2016 to a formal and substantial end, the United Kingdom cannot similarly do so.

For the United Kingdom, 2016 is here to stay.

*****

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The inauguration of a new president: mere ceremonial form and hard constitutional substance

21st January 2021

One of the few benefits of lockdown is that you are no longer expected to go to weddings and other ‘happy’ ceremonies.

Instead of days of tiresome travel and hours of boredom, one can watch the ceremony and speeches on a laptop for an hour or so and then go and do something more useful instead.

(For more on form vs substance regarding marriage ceremonies, see my 2011 New Statesman post.)

*

Much of this impatient disdain for mere ceremonial form can and should be applied to constitutional matters.

Certain symbolic events symbolise nothing other than symbolism is important only for the sake of symbolism.

Interesting perhaps for the fogeys and other enthusiasts, but often a bore for the rest of us.

And presidential inaugurations in the United States are usually fairly meaningless occasions, other than that they happen to be around the same time as when by automatic operation of law one presidential term ends and another one begins.

But the inauguration ceremony yesterday was different.

It was riveting.

*

Just as lockdown has had a few benefits notwithstanding the immense misery, so has the presidency of Donald Trump.

And one of those few benefits is that far more people now realise how the constitutional law of the United States works (and does not work) in practice.

Certain things before Trump were taken for granted to the extent that anyone realised those things existed at all.

Take, for example, what happens between a November presidential election and the January inauguration of a new presidential term.

The rights to recounts and re-run ballots; the certification of votes by each individual state; the appointment of electors for the electoral college and their obligations; and the congressional counting of the vote and certification of the winner.

Previously each of these steps – even with the contested 2000 result and Bush v Gore – was a mere formality.

One could have an informed interest in American politics and not know much or indeed anything about these obscure procedural steps.

Now many people know exactly the process that exists between the national vote and the start of a new presidential term.

And widespread knowledge about constitutional arrangements is a good thing.

It may be a bad thing for constitutional law to be exciting –  politics should take place within an agreed framework rather than constantly being about undermining that framework – but understanding the rules of any game is important for those taking part and those watching.

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And we watched the ceremony yesterday with anxious scrutiny.

Few people in the future will realise just how nervous many of us were in the last hours and indeed minutes of the Trump presidency.

What would he do? 

What could happen?

Is it over yet?

(And indeed Trump issued another pardon with only minutes of his term to go.)

Even watching the chief justice swear in the new president was not enough: it still was not noon Eastern Standard Time.

The final one or two minutes seemed to last an eternity, even though the new president was well in to his acceptance speech.

And then: it was twelve noon EST.

Not since Charles Perrault’s Cinderella has there been a strike of twelve that produced such a wonderful general transformation.

It was over.

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The greatest (if flawed) writer about the constitution of the United Kingdom – at least from an English perspective – Walter Bagehot made a distinction between the efficient and the dignified elements of a constitution.

Some who only know of this famous distinction misrepresent it as meaning that the dignified elements are somehow useless elements.

But this is not what Bagehot meant – what he actually said was:

“There are indeed practical men [and women] who reject the dignified parts of Government. They say, we want only to attain results, to do business: a constitution is a collection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless.

“And other reasoners, who distrust this bare philosophy, have propounded subtle arguments to prove that these dignified parts of old Governments are cardinal components of the essential apparatus, great pivots of substantial utility; and so they manufactured fallacies which the plainer school have well exposed.

“But both schools are in error. The dignified parts of Government are those which bring it force—which attract its motive power. The efficient parts only employ that power.”

He continued:

“[The dignified elements] may not do anything definite that a simpler polity would not do better; but they are the preliminaries, the needful prerequisites of all work. They raise the army, though they do not win the battle.”

In other words, it is not just important that institutions work well but they are legitimate and seen to be legitimate.

And thereby the purpose of any constitutional ceremony is not just an exercise in form but part of what confers legitimacy on those who exercise the power of the state.

Of course, we could have got by without any ceremony yesterday and just watched the clock run down in silent dread.

And of course, the ceremony was not ‘efficient’ – even the chief justice got the law wrong in that Biden was not yet the new president, at least for thirteen minutes.

But as Bagehot averred, to say part of a constitution is dignified is not to say that it is useless, but that it serves another purpose.

To be sworn in at the seat of the legislature by the head of the judiciary is a powerful indication of constitutional legitimacy, especially as it was at the very place where an insurrection happened just days ago.

This will not be enough for some Trump supporters, but it could not have been done better in the circumstances.

In more than one sense, therefore, the inauguration ceremony of Joseph Biden sought to bring dignity back to the government of the Unites States – not only in his personal manner but also in Bagehot’s sense of demonstrating to all those watching that this new presidency is constitutionally legitimate.

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