Category: Constitutional Law

One-quarter of the Supreme Court are now Davids – so does the Supreme Court need a different appointment system?

19th August 2022

Because of recent retirements, there was recently just one David left on the Supreme Court of the United Kingdom.

There had been a David on the Supreme Court almost continuously since its creation – David Hope, David Neuberger, and now David Kitchin.

But the forced retirement of David Lloyd Jones meant there was the risk of there one day being none at all.

And then came the great news this week that David Lloyd Jones had been able to be reappointed, and – just to be safe – David Richards was also appointed to the Supreme Court.

That means a full one-quarter of the Supreme Court are now Davids – and this has been achieved without resorting to any quota.

*

More seriously.

Some say there is something unsatisfactory about the appointments this week.

Both the judges who were appointed have outstanding judicial reputations – and it may well be that they were the best lawyers available for the job.

And there have been moves to open up who sits on the Supreme Court since it was founded in 2009 – with appointments from Academia and bodies such as the Law Commission, and also directly from the Bar, to circumvent the usual route from the High Court and Court of Appeal.

Yet some will find it hard to believe that merit means a quarter of the Supreme Court should be Cambridge graduates with the first name David.

*

But.

What – if anything – should be done?

It is one thing to say there is a problem, and it is another one to solve it.

Some people favour quotas – and they make the point that the historic near-uniformity of appointments was (and is) itself a quota system, but in reverse.

Others dislike quotas and positive discrimination on principle, or doubt the efficacy of quotas and positive discrimination in practice.

But before quotas and positive discrimination are even considered, it would perhaps be better for the current system to be opened up as much as possible, to see what happens.

Dinah Rose QC – who would have been a good appointment as a Supreme Court justice directly from the Bar – said the following on Twitter this morning:

And she posted a remarkable excerpt from Lord (David) Hope’s published diaries:

That really is an extraordinary passage, and it does not become any less extraordinary with re-readings.

*

Rose is a persuasive advocate, but before nodding-along with and clapping her well-made points, I wanted to see what the Supreme Court itself said in response.

So I asked them.

Although the Supreme Court (sensibly) does not comment on tweets, in response to my questions a spokesperson said:

“There is a clear and transparent selection procedure which has been set out by Parliament and followed by the selection commission. Judges are in the minority on the selection commission and the lay members are independent, highly skilled, and experienced people. 

“All those appointed to the Court are selected on merit and are people of truly exceptional intellectual and legal ability, with sound judgment and decisiveness and significant legal experience.

“Applications are sought from a wide range of candidates, including those who are not currently full-time judges, and those who will increase the diversity of the Court. 

“Both positions were publicly advertised, as you can see on the ‘Judicial Vacancies’ page of our website, here: https://www.supremecourt.uk/news/judicial-vacancies.html and was also publicised across our social media channels.

“The news story that was published on our website on 11th February 2022 to launch the applications also states that there were two vacancies for these positions: https://www.supremecourt.uk/news/supreme-court-launches-selection-process-for-new-justices.html

“At the bottom of that page, you can read who was on the selection commission for this competition and more about how the commission is convened. For your ease of reference, here are the names:

Lord Reed of Allermuir (Chair) President of the UK Supreme Court
Mrs. Elizabeth Burnley CBE Member of the Judicial Appointments Board for Scotland
Mr. Paul Douglas Member of the Northern Ireland Judicial Appointments Commission
Lord Kakkar Chair of the Judicial Appointments Commission
Sir Geoffrey Vos Master of the Rolls and Head of Civil Justice

“Membership of the commission for any vacancy on the Supreme Court bench is set out in statute, i.e. it is stipulated by Parliament.  As you will see, the commission for the vacancies for Justices of the Supreme Court is chaired by the President of the Supreme Court. Another senior UK judge (not a Supreme Court Justice), and representatives from each of the three independent judicial appointments board/commissions across the UK, form the rest of the panel. By law, at least two of these must be a non-lawyer. 

“You may read more about the selection process on our website: https://www.supremecourt.uk/about/appointments-of-justices.html

“The selection process is rigorous, fair and independent. It follows good recruitment practice and the new justices have been selected under provisions set out in the Constitutional Reform Act 2005. As part of the recruitment exercise, the commission actively encouraged applicants from all backgrounds.

“As outlined above, the Supreme Court does not make the appointments. However, the Court recognises that it has a role to play in increasing the diversity of the judiciary and has a Judicial Diversity and Inclusion Strategy addressing this serious issue with practical measures that will contribute to change.  

“To give you some background: the strategy does not address the appointments process which is governed by statute.  Instead, it looks at the role the Court can play in actively supporting diversity and inclusion in order to create and support initiatives that contribute to creating a more diverse, appointable pool of candidates for judicial office.

“We recognise that diversity brings richness to the judiciary and that more needs to be done to ensure that the judiciary is representative of the society which it serves.”

*

So the positions were advertised, and the selection commission would seem to be a model of diversity.

There are things in what the spokesperson said there which are good to see.

And a read of the relevant detailed and dedicated page shows how the Supreme Court went about the selection process.

There is a question to be asked about whether the current President of the Supreme Court – or any other current sitting justice of the court – should be part of the selection commission.

And the process could be more transparent – with, as Rose avers – published shortlists and criteria.

So the Supreme Court has got something to say for itself, and there is evidence that it is trying to be more diverse in its appointments.

*

But.

In the end, despite the above process, two more Davids were appointed.

Does this mean that the Supreme Court should do more?

Can it – or those who control the process – do anymore?

Or is this a wider problem in the legal system which needs a wider solution?

***

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Did Johnson lie to the Queen on the prorogation issue? – a summary

16th August 2022

Yesterday’s post caused a little bit of excitement elsewhere on the internet, and so I think it may be useful to set out the core of that longer post in one shorter post today.

The reasoning for my argument is as follows.

1. There was communication between the Prime Minister and the Queen.

This is not in dispute, and the evidence before the court was that a formal telephone call was to take place on 27 August 2019 between the Prime Minister and the Queen the day before she would be attended by Privy Councillors to make the relevant order.

The reason this was a telephone call was because the Queen was in Balmoral.

2. In this telephone call the Prime Minister would have given reasons for the prorogation order.

This should not be a controversial point, as that would have been the purpose of the call, and the Queen and her private office would have wanted to be confident that all was proper and constitutional.

That the Prime Minister would have given reasons is supported by the witness evidence for the prorogation case of the former Prime Minister John Major:

3. The reasons the Prime Minister would have given would have been those recorded in the contemporaneous documentation.

As the litigation revealed, there had been internal documentation created in August 2019 which purported to set out the reasons for the prorogation.

In essence, the purported reasons were as follows:

“The current session is the longest since records began, and all bills announced as part of the last Queen’s Speech have now received Royal Assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new Prime Minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the House returns in the autumn.”

The Prime Minister is unlikely to have admitted that the reasons for the prorogation was to stymie parliamentary accountability in the run-up to the then exit day of 31 October 2019.

4. The reasons he would have given were not the real reasons.

The Scottish appeals court – the Inner House of the Court of Session – found that the request for a prorogation had an “improper motive”.

The Supreme Court adopted a different approach, and held that the reasons given for the five-week prorogation did not add up (emphasis added):

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

The reasons given were either improper or insufficient – but in either case the reasons were not accurate.

They were not the real reasons.

5. Those who put forward those reasons knew them not to be the real reasons.

This point is in part based on the Scottish appeal court’s finding of improper purpose, but it is mainly based on the absence of a signed witness statement from a minister or official setting out the reasons for the request.

This absence was conspicuous – and it was referred to in the litigation.

The government lawyers just put in as relevant evidence the contemporaneous documentation quoted above.

The Supreme Court expressly set out the consequence of the lack of witness evidence in the passage already quoted above (different emphasis added):

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

The need for such a witness statement would have been obvious to the government lawyers and would have been reported to senior officials and ministers.

But still nobody seemed willing, under the peril of perjury, to put their name to the purported reasons.

Had the reasons given in the contemporaneous documentation been the correct reasons then there would have been no problem whatsoever in setting them out in a witness statement.

And so there can only be one plausible explanation for the lack of a witness statement.

Those in a position to know the real reasons knew the reasons stated in the documentation (and thereby the reasons which would have been given to the Queen) were not the true reasons.

Conclusion

Given the above points,  the conclusion seems to me to be inescapable.

When the Prime Minister spoke to the Queen to give reasons for the prorogation, he knew those were not the correct reasons.

*

If anybody can show a fault with any of the five points above, or with my chain of reasoning, or with my conclusion, then I will be happy to adjust my view or recant it outright.

***

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The question of whether Boris Johnson, in effect, lied to the Queen

[ADD – I have now done a short summary of the argument advanced in this post here.]

 

15 August 2022

On Twitter a number of accounts have recently commented in respect of front page of the Daily Mirror from 12 September 2019:

The online version of the article is here.

The comments are critical of the headline and of the apparent source of the headline, which is me.

I am quoted in the article, on the front page, as follows:

“Legal expert David Allen Green said: “In effect, the court held that Boris Johnson lied to the Queen.””

This seemingly renders me the source of the “Boris lied to the Queen myth”.

Another tweeter has said of the use of the word “lie” here shows that we cannot have civil discourse until adults control how they use language and that, in our system, the law of defamation is supposed to police such silliness.

I also cannot be regarded as a credible legal commentator, I have been told, because of this statement.

(I have deliberately not named the critics here, as I have a bigger platform than they do, and do not want to cause a pile-on.)

*

Do these critics have a point?

One preliminary point I can make straight away is that I do not think the newspaper headline accurately conveys the argument I was making in the text quoted.

The “in effect” was not mere surplusage – I used the phrase for a reason.

Had I wanted to stated plainly that I knew that the Prime Minister had lied to the Queen, I would have said so.

But I did not say that, because I did not mean that.

I said what had happened showed that, in effect, the Queen had been misled, and that this had been deliberate.

And so I cannot defend the Mirror headline, and I do not do so.

It is not the headline I would have chosen for the piece that quoted me.

*

And there is another preliminary point.

The view I expressed was not (and was not intended to be) a précis of any judgment – I know what the judgments say just as much as anyone who can read the relevant judgments.

No court was asked to determine if the Queen had been lied to, and so there is no judgment which sets out whether the Queen was lied to or not.

The view I expressed was based on my own reasoning, as a commentator, based on what I had read in a particular judgment and my understanding of the relevant circumstances.

Any judgment is a text and my role as a commentator is to place that text in a context.

This is what I do with many judgments in my commentary, and so this was the view I formed about this particular case.

*

But.

That is not good enough.

Can I still defend the view that I actually did express: that, in effect, the Queen was lied to?

Let us see.

*

We now need to go back in time and remind ourselves of the relevant dates.

It was 2019, and the United Kingdom was still a member of the European Union.

The original departure date of 29 March 2019 had been missed, and the exit date was then rearranged a couple of times, with the departure date eventually being set for 31 October 2019.

Johnson became Prime Minister in July 2019.

On 28 August 2019, the Queen made the following order:

“It is this day ordered by Her Majesty in Council that the Parliament be prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019, to be then holden for the despatch of divers urgent and important affairs, and that the Right Honourable the Lord High Chancellor of Great Britain do cause a Commission to be prepared and issued in the usual manner for proroguing the Parliament accordingly.”

The prorogation of parliament was therefore to be for five weeks, which was unusual in and of itself.

But what made this prorogation politically controversial was that it would deprive parliament from sitting in the key period running up to the then exit date of 31 October 2019, meaning that there was a real prospect of the United Kingdom leaving the European Union without a withdrawal agreement.

As it happened, parliament quickly passed the so-called Benn Act on 9 September 2019, which required the Prime Minister to request an extension in the event that there was no withdrawal agreement in place (which is what Johnson then had to do).

But the legal question at the time was whether the prorogation was lawful.

And the political question was whether Johnson had sought the prorogation for cynical reasons of expediency.

*

The prorogation faced legal challenges, including one in Scotland.

The appeal judgment of the Scottish case dated 11 September 2019 set out the following events:-

15 August 2019 – a memorandum went to the Prime Minister recommending prorogation, with the reason stated as “The current session is the longest since records began, and all bills announced as part of the last Queen’s Speech have now received Royal Assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new Prime Minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the House returns in the autumn.”

16 August 2019 – the Prime Minister wrote the following response:

“1. The whole September session is a rigmarole introduced [REDACTED] to show the public that MPs were earning their crust

2. So I don’t see anything especially shocking about this proposition

3. As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few”.

23 August 2019 – there is a further memorandum to the Prime Minister, which the court described as a handling plan, saying:

“It refers to the PM’s agreement to approach HM theQueen with a request to prorogue Parliament within the period Monday, 9 to Thursday, 12 September and for a Queen’s Speech on Monday, 14 October. A telephone call between the PM and the Queen was fixed for the evening of 27 August. The Order in Council was to be signed on 28 August. On that day, the Chief Whip and the Leaders of the Houses ofCommons and Lords were to go to Balmoral to form the necessary meeting of the PrivyCouncil. After the signing, the members of the Cabinet would be informed, followed by theParliamentary Party and the press. The planned announcement to the Cabinet was to focus on the extraordinary length of the current parliamentary session. A statement would be made that this could not continue and that the PM would bring forward a new legislative agenda which would take matters “through our exit from the EU and the months that follow”. At the heart of the agenda would be the Government’s “number one legislative priority” (Brexit). If a deal was forthcoming, a Withdrawal Agreement Bill could be introduced to “move at pace to secure its passage before 31 October”. The PM would confirm that he was committed to facilitating Parliament’s ongoing scrutiny of Brexit. He would deliver a statement and take questions on the “first sitting back” (presumably14 October). A draft letter to Conservative MPs was provided. This re-iterated the message to Cabinet Members. It stated that the NIEFA 2019 would be debated on Monday, 9 September and that thereafter the Government would “begin preparation to end theParliamentary session ahead of a Queen’s Speech”.”

The court then noted that on 28 August 2019 three Privy Counsellors attended at Balmoral where the Queen promulgated the Order (which I quote above).

*

So we now have a sequence of events, which included the Prime Minister telephoning the Queen on 27 August 2019 and for privy councillors to attend for the Order to be made the following day.

*

The Scottish court decided as follows:

“When regard is had to all the material now before the court, it is my opinion that the petitioners are entitled to be sceptical of the proposition that the reason for making the Order was simply in order to prepare a new legislative agenda for announcement in a Queen’s Speech at the beginning of the next session of the Parliament. Further, I consider that they are entitled to ask the court to infer, as I would infer, as submitted on behalf of the petitioners, that the principal reason for the advice to the Queen to make the Order for the prorogation of Parliament was to prevent or impede Parliament holding the Executive politically to account in the run up to Exit Day; to prevent or impede Parliament from legislating on the United Kingdom’s exit from the European Union; and to allow the Executive to pursue a policy of no deal Brexit without further Parliamentary interference.”

The Scottish court did not believe the reasons which had been given in those quoted documents were the true reasons.

They were false reasons.

The court stated that there had been an improper purpose.

*

Now we come to something which was missing from the case – and from the concurrent case in England.

The dog that did not bark in the night.

As a former government lawyer, it fascinated me that the court was being invited to look at the original documents for the reasons for the prorogation, and not a comprehensive witness statement of a minster or senior official setting out the reasons.

This lack of a witness statement was referred to in the judgment:

“[Advocate] was also critical of the absence of any affidavit, whether to explain the documents or otherwise to support the reasons for advising the Queen to make the Order. It was for the Prime Minister, submitted Mr O’Neill, to commit to a position on oath and render himself liable to cross-examination. I do not agree with Mr O’Neill on any of these points. In my opinion it is open to a court to look at any documentary production which is tendered to it and give it such weight as the court considers that it is worth.” 

This absence, in my opinion, was and is highly significant.

Why would no minister or official commit themselves to a signed witness statement, which would put the minister or official under the peril of perjury?

If the reasons as set out in the quoted documents were the true reasons, then there would be no reason why a minister or official would not sign a witness statement.

The only plausible explanation, it seemed – and still seems – to me is that no minister or official was willing to commit themselves to those being the true reasons for the prorogation, under pain of perjury.

If so, this would mean that they knew those were not the true reasons. So not only were those reasons false, they were known to be false.

*

This is when I wrote the article which was quoted by the Daily Mirror.

My reasoning was as follows:

1. There had been contact with the Queen by telephone, as well as a formal advice.

2. The Queen would have been give reasons for the prorogation, consistent with the documents quoted above.

3. Those reasons were not the true reasons for the prorogation.

4. Those giving the reasons knew that that they were not the true reasons for prorogation.

Point (1) is from the judgment; point (2) I inferred from the circumstances [ADD – and can be taken from John Major’s witness evidence, quoted below in the POSTSCRIPT]; point (3) was based on what the Scottish court found; and point (4) I inferred from the lack of a signed witness statement.

Based on this reasoning, I stated that – in effect – the Queen had been lied to. She had been given reasons which were false and which those giving the reasons knew to be false.

*

The Scottish case, like the concurrent English case, then went to the Supreme Court.

This was after my statement which was quoted by the Daily Mirror.

The Supreme Court approached the case differently from the Scottish appeal court – and in particular, the Supreme Court did not base its decision on improper motive.

It approached the case as follows (my emphasis added):

“For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

The crucial element here is the requirement for a “reasonable justification”.

And again, that lack of a witness statement made all the difference (emphasis again added):

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

That dog was still not barking.

*

Had the Supreme Court had a witness statement from a minister or official setting out the reasons for a five-week prorogation then, in my opinion, I think the government would have won the case.

(I have since spoken with a number of people involved in the case, and they agree.)

The potential importance of the lack of such a witness statement would have been known to the government’s litigation team, and that would have been conveyed to ministers and officials.

But still no signed witness statement was forthcoming.

*

So: I do not defend the Daily Mirror headline, and nor did I pretend to be summarising the reasoning of the court.

But, for the reasons set out above, I think I can maintain that, in effect, the Queen was lied to.

And if this was not the case, then there needs to be a better explanation than the ones that I have reached for (a) the reasons that were given to the Queen when the Prime Minister telephoned her, and (b) the reason why there was no signed witness statement setting out the reasons for the prorogation.

If someone can come up with a better  explanation than the above for (a) and (b) then I will change my view and recant.

But given the reasoning above, I am afraid I cannot escape the view that, in effect, the Queen was lied to.

 

**

POSTSCRIPT

I have been reminded that the former Prime Minister John Major, in his witness statement for the legal challenge in England, expressly stated that a Prime Minister would give reasons to the Queen:

***

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Hillary Clinton’s emails vs Donald Trump’s boxes of files – and the dangers of hyper-partisanship

 

You will remember the issue of Hillary Clinton’s emails.

She used a private email server during her time as Secretary of State.

You may also be one of those who formed the impression that a later statement by the director of the FBI on the issue led to Clinton losing the presidential election to Donald Trump.

You may also recall the chants of “lock her up” by Trump supporters in response to mentions of this email issue.

*

Those in executive office, it would seem, should be careful about how they store information – else they could be breaching federal law.

Framed in those general terms, this description of what Clinton did wrong can cover what appears to be what Trump may have done wrong.

For today there was a search at Trump’s Florida residence by the FBI.

And the search was not for emails, but for classified documents, wrongly taken from the Whitehouse.

Hard copy equivalents of the electronic documents of Clinton.

But instead of clapping and cheering, as they did with FBI announcements about Clinton, Trump supporters are against this development.

So here was Trump-supporting Congressman Kevin McCarthy on Clinton’s emails:

And here is the very same politician on the search at Trump’s property:

There is no intellectually honest way that these two stances can be reconciled.

The only explanation for the two stances is hyper-partisanship.

And like many hyper-partisans, he has invoked constitutional arguments of first principle when it suits his cause, but does not apply them the same way against his cause.

It is this hyper-partisanship which is worrying.

Either the FBI should be free to look at Clinton’s emails or Trump’s boxes or they should not.

But to say one is good and the other bad signifies a partisanship that picks and chooses which basic principles should be complied with.

And as this blog has said before, constitutionalism is the notion that there are certain fundamental rules and principles that should govern political behaviour regardless of personal or partisan advantage.

The FBI should be left to get on with their investigation and to follow where the evidence takes them, without fear or favour.

McCarthy is right that there is an intolerable state of weaponised politicisation.

But it is coming from Trump supporters, and it does not bode well.

***

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The 3Ps, politics and Anglocentrism – or what should they know of Johnsonism and Trumpism who only Johnson and Trump know?

25th July 2022

“And what should they know of England who only England know?” was a question once posed by an imperialist poet.

One of the problems of commentary is insularity: you comment about what is familiar, with nods to things which are – you think – recognisable.

And so it is with law and policy commentary, even when (like this blog) one strives not to be Anglocentric and seeks to pay as much attention to (say) Edinburgh and Dublin and Washington and Brussels as to London and Birmingham.

In particular, one thing commentators seem to do is emphasise endogenous explanations – for example, about what the example of Boris Johnson tells us about the historic weaknesses of the United Kingdom polity and constitution – with a sideways glance at the United States

But Johnson is also a local manifestation of something happening in many countries.

Johnson is not the only one.

*

In a fascinating and insightful new book The Revenge of Power, Moisés Naím – a former Venezuela trade minister and editor-in-chief of Foreign Policy posits the 3Ps:

“3P autocrats are political leaders who reach power through a reasonably democratic election and then set out to dismantle the checks on executive power through populism, polarization, and post-truth.”

In his preface he mentions a list of applicable politicians – and although Johnson is discussed in the book, he does not even make this primary list:

“We have in mind here Donald Trump, of course, but also Venezuela’s Hugo Chávez, Hungary’s Viktor Orbán, the Philippines’ Rodrigo Duterte, India’s Narendra Modi, Brazil’s Jair Bolsonaro, Turkey’s Recep Tayyip Erdoğan, El Salvador’s Nayib Bukele, and many others.”

In turn, the 3Ps are defined and illustrated:

“Populism may be the most persistently discussed of the three Ps and the most often misunderstood. Because it ends with “-ism,” it is often mistaken for an ideology, a counterpart to socialism and liberalism in the competition for a coherent governing philosophy. It is no such thing. Instead, populism is best understood as a strategy for gaining and wielding power.”

“Polarization eliminates the possibility of a middle ground, pushing every single person and organization to take sides.”

“In their current approach to post-truth, leaders go far beyond fibbing and deny the existence of a verifiable independent reality. Post-truth is not chiefly about getting lies accepted as truths but about muddying the waters to the point where it is difficult to discern the difference between truth and falsehood in the first place.”

*

Of course, elements of all three are not new.

And we can self-indulge in a parlour game of “well, actually, there is this antecedent”.

Yet, the combination is a current phenomenon, made more potent by technological and political changes, such as the decline of parties and of traditional news media.

And it seems to be something liberals and progressives – and even conservative constitutionalists – are finding difficult to combat, or even comprehend.

And even though the Boris Johnsons and the Donald Trumps may personally leave office one way or another, the frames of mind with which they are associated are likely to linger.

The problem may therefore ultimately not be about the peculiarities of uncodified British constitution or its codified American counterpart.

The 3Ps were (are) going to be a problem whatever our constitutional arrangements.

It is not the fault of us not having a codified constitution any more than it is the fault of the Americans having a codified constitution that privileges illiberal and low-population states.

The problem is not (ultimately) constitutional or legal, but political.

It is about our sense as a polity: about what is acceptable in our political leaders, about what we value as checks and balances, and about how we believe political decisions should be made.

And because it is a political problem then it needs a political solution.

No constitution-mongering, by itself, will offer an easy way out.

The cases for liberalism and progressivism – and indeed constitutionalist conservatism – all need to be made afresh and in new ways.

Even seeking to place fundamental rights beyond the reach of 3Ps politicians will not be enough, as these politicians and their political and media supporters will simply politicise and discredit and trash the rights instruments, rather than respect them.

*

It was never going to be inevitable that the world would become more liberal and progressive, and enlightened and tolerant – despite the triumphalism of some liberals and progressives in the heady halcyon (ahem) days of Clinton, Blair, Obama and the EU constitutional treaty.

That said, it is also not inevitable that the 3Ps politicians will win – their triumphalism may, in turn, also be ill-based.

So it is still all to fight for.

But.

In this contest, we should not think these are just local problems for local people.

The 3Ps politicians are part of a worldwide trend, and so we need to be aware of what works and does not work elsewhere – and not just in the United Kingdom and the United States.

Where has the case for constitutionalism – codified or not – been made successfully?

Where have people been made to care that their politicians are lying?

Where have voters and politicians valued checks and balances that may go against their partisan and personal advantages?

For, to adapt the poet:

“And what should they know of Johnsonism and Trumpism who only Johnson and Trump know?”

***

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Some of this is normal, and some of this is not

21st July 2022

One job of a commentator is to separate out what is normal and what is not.

It is only by separating this out that you can reckon what is significant and what that signifies.

So over at Al Jazeera I have had a go at separating out what is (constitutionally) normal and what is not about the current political drama.

Please click and read here.

As you will see: that there is a change of Prime Minister between general elections is quite normal – and as this blog has noted many times, every single Prime Minister since 1974 has gained or lost office between general elections (or, for May and Johnson, both).

And it is also normal for the mid-term successor to be either a current or recent holder of one of the so-called ‘great offices of state’.

Since the Second World War, the incoming mid-term Prime Ministers have been: 1955 – Foreign Secretary; 1957 – Chancellor; 1963 – Foreign Secretary; 1976 – Foreign Secretary; 1990 – Chancellor; 2007 – Chancellor; 2016 – Home Secretary; 2019 – (very recent) Foreign Secretary.

So far, so normal.

A Prime Minister is going mid-term and will be replaced by either the Foreign Secretary or a (very recent) Chancellor.

Framed like this, the current political drama is normal, ordinary.

But it is not normal or ordinary, is it?

The current political situation is abnormal and extraordinary.

In the last few weeks we have had mass ministerial resignations and ministers openly attacking their government’s policy on television.

A Prime Minister who only in December 2019 won a mandate and a sizeable majority has been spat out because he was repugnant to the body politic.

And one measure of just how unusual the current political situation is just how close we came to the next Prime Minister not even being in the cabinet – or even a current or recent minister.

Such inexperience in an incoming Prime Minister can happen at general elections – neither Blair nor Cameron had been ministers before becoming Prime Minister – but it would be unusual midway during a parliamentary term.

Given the combustible politics of the current governing party – and the ongoing challenges posed by Brexit and other matters – one can only wonder what usual political events will happen before we get finally – and hopefully safely – to the next general election and – which our political system badly needs – a change in the governing party.

***

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Boris Johnson did not “see off” Brenda Hale – so why did he say that he had?

 

On 25 July 2019 it was announced that Lady Hale would retire as President of the Supreme Court:

The retirement was to be on 10 January 2020.

This retirement was because of the operation of the mandatory retirement age for judges, which in the case of Lady Hale meant she had to retire by when she became 75 on 31 January 2020.

Lady Hale’s retirement by 31 January 2020 was thereby inevitable.

There was nothing she – or anyone else – could do about it.

This retirement announcement was made the day after a certain Boris Johnson, the now departing Prime Minister, took office.

*

Yesterday the now departing Prime Minister Boris Johnson said in the House of Commons:

“With iron determination we saw off Brenda Hale and we got Brexit done.”

But it was not Boris Johnson and his government that “saw off Brenda Hale” but the Judicial Pensions Act 1959 (as amended and unamended by subsequent legislation).

So what did he mean?

In terms of practical litigation, the statement also makes no sense.

The two key Brexit cases that reached the Supreme Court under the presidency of Brenda Hale – known as Miller 1 and Miller 2 – were cases which the government lost.

Indeed, Miller 2 – which held that Boris Johnson’s attempt to prorogue Parliament was unlawful – was when that unconstitutional antic was “seen off”.

So presumably he does not mean that, either.

*

What I suspect he means is that he got “Brexit done” despite the various litigation attempts to shape, delay or frustrate Brexit.

The two Miller cases were, strictly speaking, constitutional cases where the judiciary upheld the rights of the legislature against executive overreach.

But the more ardent supporters of Brexit did not – and still do not – see it that way.

And there were certainly other – less well conceived – legal cases which sought to stop Brexit, such as the “Article 50 challenge” cases.

If this suspicion is correct, then Brenda Hale is being used by Boris Johnson as a shorthand for all the legal challenges and obstructions which were made to Brexit, real or imagined.

Or, alternatively, Brenda Hale is being used as a shorthand for all those constitutional checks and balances that prevented Boris Johnson doing as he wished with the ship of state.

If so, these interpretations would accord with something else the Prime Minister said yesterday:

“The Leader of the Opposition and the deep state will prevail in their plot to haul us back into alignment with the EU as a prelude to our eventual return.”

Perhaps it should not be a surprise that Boris Johnson would use the phrase “deep state” at the despatch box – a term used by certain political conspiracy theorists.

Perhaps him using that terms is an indication of the deep state we are actually in.

If the above is correct, then the meaning of what Johnson said yesterday is that he saw off the “deep state” in its judicial manifestation and got Brexit done, though the “deep state” in its other manifestations are now seeking to reverse Brexit.

This is not a healthy frame of mind.

And if this thinking (or lack of thinking) becomes more widely shared, it does not bode well for a healthy polity.

*

Even if Boris Johnson was correct and that, in some meaningful way, he had “seen off” the President of the Supreme Court, then it would still be worrying that this was something any Prime Minister wanted to boast and gloat about.

Such gloating and boasting – well based or not – signifies a hyper-partisan approach to politics, the separation of powers and the rule of law.

As with other checks and balances in the constitution, Boris Johnson sees them as things to be defeated and for those defeats to be seen as personal triumphs.

Even though those who clap and cheer Boris Johnson in doing this would be the first to complain, from constitutional first principle, if an opposition politician such as Jeremy Corbyn or Keir Starmer did the same.

And imagine the sheer fury if any judge boasted and gloated that they had “seen off” Boris Johnson.

Boris Johnson’s conspiratorial hyper-partisanship is dangerous, and so it is a good thing that Boris Johnson is now going.

But just as Trumpism has continued in the United States even after Donald Trump’s departure from the presidency, the worry is that this Johnsonian frame of mind, with its deep state conspiracy-thinking and contempt for checks and balances, will linger.

For, if anything, that is what needs to be “seen off”.

***

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The lack of seriousness about policy, “mandates” and “collective ministerial responsibility”

18th July 2022

Today will be the hottest day, we are told, since records began.

It is strange to be living on such a historical day.

One would expect the “most [x] day ever” was some other time, with historical footage or monochrome photographs.

But no, it is today.

And on this hottest day since records began, we have current and very recent members of the government tearing into the government’s record in general and each others’ records as ministers in particular.

Confidential and private ministerial exchanges – easily outside the reach of even the most determined Freedom of Information request – are being casually and freely disclosed on national television.

And these disclosures are not being made because they pass some (supposedly) objective public interest test, but because such disclosures are to the personal and political advantage or disadvantage of particular candidates.

It is quite a spectacle.

If you were watching this – but were unaware of the doctrine of collective cabinet and ministerial responsibility – you would never guess such a doctrine existed.

Of course, this is a leadership election – and so perhaps one could contend that such a doctrine is suspended for the duration of the contest.

Just like the doctrine was suspended for the referendum campaign.

But.

It could also be contended that this spectacle is not an exception but indicative of a new (if temporary) norm.

When Prime Ministerial authority collapses, a cabinet full of ambitious politicians loses its only real source of discipline.

And until and unless there is another authoritative Prime Minister – and the signals from the current leadership debates are not encouraging – such public rows and confrontations may reoccur.

But there is perhaps a deeper problem.

Another explanation for the lack of collective cabinet and ministerial responsibility is a lack of seriousness about policy.

Instead of politicians being in office to implement policy, policy positions exist to promote the careers of politicians.

In this way, policies like words are the counters of the wise, but policy positions are the money of fools.

And it seems many current ministers do not care for many overall government policies to do with such issues as the economy, fiscal policy, and – notably on this hot day – climate change.

(They do, however, support – or say they support – the performative cruelty of the Rwanda deportations.)

This lack of overall commitment to government policy is especially significant given that this government is between parliaments.

As the fine columnist Zoe Williams observed about the most recent televised debate:

“Two points of unity in the hour: none of them would have Boris Johnson in their cabinet, should he ask to serve; none of them wanted an early general election.

“This is the crucible of their problem: they want to keep the mandate, while wholeheartedly disowning the mandated, and on what grounds, they have no clue.”

Williams is correct to highlight this tension, if not contradiction.

Even before Boris Johnson announced his departure as Prime Minister, this government was running out of ideas.

The most recent Queen’s Speech was an unimpressive affair, on any sensible view.

Brexit is still not “done”, and “levelling-up” is a slogan without substance.

And now, with Johnson gone, it becomes even less obvious what the governing party should do with the majority it obtained from the 2019 general election.

At least with Johnson in place, the purpose of that majority was to keep Johnson in place.

And now he has gone, even that personal and selfish purpose disappears.

Any new programme by the incoming Prime Minister will not have a general election mandate.

And if elements of that programme are controversial, then – given we are now at least over halfway through this parliamentary term – there may not be enough time to push contentious legislation through the House of Lords.

We may therefore end up with a lame duck government, unable to promote new policies and unwilling to face a general election.

This will also be in a period of weakened Prime Ministerial authority and a decline in collective ministerial responsibility.

And all this in the context of a cost of living crisis, war in Europe and ongoing climate emergency.

The general lack of seriousness about policy risks changing from being an irksome bug in our government to its characteristic feature, at a time where we most need seriousness about policy.

This is not looking good.

***

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The “written constitution” debate after Boris Johnson

15th July 2022

There is no doubt that the deed was done.

The body politic, finding Boris Johnson repugnant, spat him out of the premiership.

His political collapse was remarkable.

Two-and-a-half years ago, he had the greatest prizes that our constitution can bestow.

He had a substantive majority from a general election – and so he could get his programme through the House of Commons.

He had a mandate for a manifesto – and so he could also get his programme through the House of Lords without rejection or delay.

He could handpick his cabinet – without having to accommodate major party rivals, for he then had none.

He could handpick his Number 10 staff – including appointing controversial figures.

And circumstances and events were also favourable for him politically.

He had “got Brexit done” – or at least he had done to the (then) satisfaction of his party and the electorate.

Covid, and then Ukraine, provided unifying issues on which the country would look to the Prime Minister for leadership.

He even had the benefit of being Prime Minister during the Platinum Jubilee.

(Can you imagine what, say, Benjamin Disraeli would have done with that.)

Yet Johnson spaffed it all away.

And he lost power before the new parliament was even halfway through.

It is an astonishing political collapse.

It is difficult to think of a precedent – not even Anthony Eden’s failed premiership compares.

*

But.

What, if anything, does this tell us about the constitution – and about whether we need a codified (or “written”) constitution.

(Yes, we all know the constitution is already largely written down, though just not in one place – but this is the phraseology we have to work with in this debate.)

*

On one hand, the swift ejection of Johnson from the gut of the polity shows that something is working.

This is especially so when you realise he did not lose any formal vote, and that he recently won a vote of confidence from his own parliamentary party.

A more formal position for the Prime Minister may have meant we would have had to suffer Johnson for a fixed term – as codes can fortify as well as restrain.

In the United Kingdom, the office of the Prime Minister has little formal recognition, and it has few mentions in statute.

It rests on the twin stools of the royal prerogative and the supremacy of parliament – and when a Prime Minister loses the actual (if not formal) confidence of their cabinet and/or their parliamentary party, they become politically weak very quickly.

And as this blog has frequently mentioned: every Prime Minister since 1974 has either gained power or lost power between general elections – and, in the cases of May and now Johnson, both

*

On the other hand, we come to one of the most wonderful phrases used in politics.

“We should not be complacent.”

What is wonderful about this phrase is that nobody would ever say sincerely “we should be complacent.”

No one yells, “yay, complacency!”

But complacency can be a state of mind, even if it is not admitted.

And there is force in the point that with Johnson we were lucky he was a buffoon.

The reason for his departure from the premiership was not policy.

It was not his constitutional trespasses and subversions.

And it was not any of his various forms of unlawful behaviour.

The reason for his departure was his personal failings.

A Boris Johnson clone, stripped of the personal failings, but with the same policy (or lack of policy), the same contempt and disdain for constitutional norms, and the same mix of casual and directed unlawfulness, would still be in power.

We were lucky Johnson was a charlatan and a fool, but what if we were to have a fanatic and a knave?

*

The leading public law academic Mark Elliott has asked the question about whether recent events show the need for a written constitution on his outstanding blog.

My view is that this is not an easy question to answer.

There will be those who will say – as a reflex – that “this shows the need for a written constitution”.

One suspects that this is what they would say in any conceivable situation.

But those with the opposite reflex need to reflect and re-consider – even if they re-adopt the same view.

The decline and fall of Boris Johnson’s empire was an extraordinary event.

But the lessons of extraordinary events are often not immediately obvious.

 

***

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How the Government refusing a Confidence Vote subverts our Constitution

13th July 2022

The essence of our parliamentary democracy is confidence – that is its lifeblood, its electricity.

The United Kingdom is not a direct democracy, and it is not an absolute monarchy.

The government instead rests on having the confidence of the House of Commons.

That is: the confidence of the majority of elected Members of Parliament.

Without that confidence, a new government must be formed or there must be a general election.

In this way, the test of confidence of the House of Commons is the most important political test for the government in our constitution.

This confidence is of more immediate import than, say, the results of a general election – for a government will only resign after an adverse general election once it realises it does not also have the confidence of the House of Commons.

Confidence is therefore fundamental, crucial.

The test of confidence thereby provides both the authority and the legitimacy of our government in this parliamentary system.

And because the test of confidence is so important, then the application of that test must take priority over any other parliamentary business.

*

In the last week the governing party of the United Kingdom has imploded.

The Prime Minister announced his impending resignation after dozens of ministers resigned, leaving at least one department without a minster.

The governing party is now seeking a new leader, as we have the public spectacle of ministers campaigning against each other, and even attacking each other publicly.

Instead of collective cabinet responsibility, we have a collective cabinet free-for-all.

The government of the United Kingdom is in a dreadful state.

And as this government – as with any other government of the United Kingdom – derives its authority and legitimacy from having the confidence of the House of Commons – then whether the government has the confidence of the House of Commons must be tested.

For, if that confidence is not to be tested in this current remarkable situation, when should it be tested?

Yet the current government is refusing to allow a confidence vote in the House of Commons.

The pretext for this refusal – though not a good reason – is that the wording of the confidence motion, which refers to the current Prime Minister as well as the government is not within the convention for such votes.

But this excuse is wrong both as a matter of precedent and as a matter of principle.

Previous confidence motions have expressly mentioned the Prime Minister.

And as the function of such votes is so that the authority and legitimacy of the government within a parliamentary democracy can be affirmed, it is not for the government to refuse such a vote.

Either parliament, through its elected representatives, is supreme or it is not.

Either the government of the day has the confidence of a majority of Members of Parliament, or it does not.

There is no doubt that a debate and a vote on a motion of confidence is unwelcome not only to the current (though departing) Prime Minister and to the governing party.

There is also no doubt that in political reality the governing party has no confidence in the current Prime Minister and thereby in how this government is currently constituted.

But these are not good reasons to deny a vote – indeed these are reasons why such a vote should take place.

Once a new Prime Minister is in place then it is likely that the newly constituted government will allow the confidence of the House of Commons to be tested.

And so, in a way, the practical effect of a vote of no confidence is being put in place, but without an actual vote.

It can thereby be argued that having such a vote is superfluous.

But.

The problem here is not that the government will not be reconstituted when it needs to be reconstituted, for that is happening.

The problem is that it should never be for the government of the day to gainsay when votes of confidence are to take place and not to take place.

It is not good enough for ministers to say that such votes are not necessary, for it is not for ministers to make that decision.

*

There is no doubt that the majority of Members of Parliament have lost confidence in the currently constituted government.

That is as plain as a pikestaff.

There is also no doubt that the government and the governing party have lost confidence in themselves.

And by refusing to allow a vote of confidence, they are subverting what gives a government its authority and legitimacy in our parliamentary system.

**

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