Category: Constitutionalism

Constitutionalism vs constitutionalism – how liberal constitutionalists sometimes misunderstand illiberal constitutionalism

24th August 2023

One conceit of many liberal constitutionalists is that they have a monopoly on constitutionalism: that is the notion that constitutional rights and structures are fundamental to political thought and action.

An indication of this conceit is the immediate – indeed automatic – response of British liberals to certain political mishaps and transgressions: this shows the need for a written constitution.

This is said, with force and sincerity, regardless of the brute fact that written (that is, codified) constitutions can be very illiberal things indeed.

A codified constitution can entrench rather than limit executive power, and it can limit rather than entrench the ability of other organs of the state to check and balance executive power.

From a liberal perspective, the true test of a written constitution for the United Kingdom is whether it would be more liberal than our current uncodified constitutional arrangements.

There is no reason to believe it would be, especially if the government of the day – with its army of ambitious officials and clever legal advisers – has anything to do with its drafting and implementation.

Our current constitutional arrangements have obliged the executive to use legislation for the Article 50 notification and prohibited the government from using a prorogation for wrongful purposes; and our current constitutional arrangements also have led to two prime ministers losing power, notwithstanding the large majority of the incoming government in 2019.

Against these highlights, however, is the steady push of the executive to gain more and more discretionary power, especially in respect of interfering with the rights of individuals. So the current arrangements should not an excuse of complacency, for our constitution has many illiberal features too.

But the way forward to making our constitution more liberal is not to assume that illiberals do not care about constitutions; it is to realise and accept that they too care about constitutional powers, but not in the same way as liberals.

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In a more vivid form, this can be seen in the United States where the Trumpites and others frame their objections to their government in terms of their constitutional rights, especially to bear arms and free expression, and states’ rights.

Even the events of 6 January were based on an elaborate ruse of gaming the constitutional role of Vice President (as president of the senate) and exploiting that role’s responsibilities in respect of electoral college votes.

This may not be constitutionalism which is to your liberal tastes – and indeed many conservative constitutionalists were opposed to this ploy.

But it is still a form of constitutionalism – in that certain constitutional provisions were being (mis)used to legitimise and achieve certain political ends.

What Trump and his conspirators wanted to do was to keep power by (mis)using constitutional provisions.

And, of course, he would not have been the first authoritarian populist to seize and retain power through constitutional arrangements, rather than in spite of them.

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It is prudent in public matters to try to understand political opponents on their own terms, rather than to caricature them and their motives.

Liberal constitutionalists need to realise that their opponents also care about constitutional arrangements and constitutional legitimacy, but do so in a very different way and within a very different narrative.

The battle is not about constitutionalism against anti-constitutionalism.

It is between two contrasting and irreconcilable views of constitutions and what can be done with them.

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Of impeachments and indictments – how many of the criminal indictments against Trump are a function of the failure of the impeachment process

15th August 2023

 

There is an old Hebrew proverb which can be roughly translated as:

What is the difference between a wise person and a clever person?

A clever person can get themselves out of situations a wise person would not have got into.

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There are many points of similarity (as well as of contrast) between Boris Johnson and Donald Trump.

One common feature is their manoeuvrability.

They can perhaps be seen to get themselves out of situations which more prudent politicians would not have got into.

The impression conveyed is a constant short-term living-on-ones-wits, with a deft dodge here and will-to-power there, which would exhaust most other mortals.

But.

Each improvisation comes with a potential cost, for what deals well with one situation may not be helpful in another situation.

And this is the difference between tactics and strategy.

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To put this in more concrete terms: Johnson and his lawyers appear to have hit on a good defence to possible criminal liability over the Downing Street parties.

A previous blogpost sets out how useful this line – about the need to show leadership in a work situation – was in dealing with the police and any potential fines or prosecution.

But that defence came with costs.

One cost was that it provided no defence to his own birthday party: and so that was the one for which he was fined.

And another cost was that it offered no relief in respect of the House of Commons investigation: what was a good defence in one context had no traction in another.

Johnson’s attempts to “lawyer-up” for the committee fell flat, his legalistic and supposedly “devastating” submissions got him nowhere – nowhere, that is, other than outside of the House of Commons.

His tactics worked regarding the potential criminal liability, but his strategic approach to holding power was so inept that he went from being an incoming Prime Minister with a sizeable majority to not even being a member of parliament in less than a single parliamentary term.

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A similar thing can perhaps be seen now in the United States.

Trump somehow headed off not one but two impeachment exercises: he may have been impeached twice, but he was not convicted for either.

The latter impeachment was, of course, for the events of 6 January.

And so he avoided the punishment set out in the constitution for political misconduct.

But where the impeachments have failed, it appears that indictments have taken up the political slack.

It is maybe difficult to imagine that any of the current indictments against Trump – even the document retention ones – would now exist had Trump been convicted on impeachment.

(Logically, of course, the events of 6 January would have been different had the earlier impeachment ended with a conviction.)

Had Trump been convicted on impeachment – even if he had then received a Ford-Nixon type pardon – and thereby formally dismissed from office and unable to return, then it is possible that it would have seen that he had been punished enough.

An exercise of political misconduct – his role in the events of 6 January – would have then been dealt through the constitutional mechanism of impeachment – and so would have had a political solution.

Instead that political misconduct has been converted into criminal charges.

This is not to say that the criminal charges are not sound and evidenced – some of the cases look very strong and Trump’s position looks correspondingly very weak. Trump is in serious legal jeopardy.

The point is that these indictments (with the possible exception of the document retention charges) are really doing the job that should have been with the second impeachment, had Trump and his Senate allies not manoeuvred for an acquittal.

That tactical success, however, offers no defence to the criminal charges he now faces.

And instead of disgrace and permanent removal from office, he now faces criminal liability and even prison time.

The Georgia charges look especially bad for him, as there seems no pardon would be available – either from a president or the governor of the state.

In essence: it would seem that the impeachment process failed in the very circumstances such a political and constitutional remedy should have succeeded.

And, if you will pardon the pun, that is quite an indictment of the US constitution.

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A note of caution for those clapping and cheering at the latest indictment of Donald Trump

8th August 2023

 

(Picture credit.)

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The former president of the United States is facing serious legal trouble, with a serious criminal indictment which takes seriously his role in the 6 January insurrection, and – what is more – he also faces a serious judge taking her job seriously.

No matter how many times one types “serious” it is hard to overemphasise how serious this is for Trump and, by extension, for the United States generally and for the liberal constitutionalist notion that nobody, not even Donald Trump, is above the law.

But.

Taking this seriously also should also mean that those looking on should not give way to elation and celebration.

And this is because, as with all contested litigation, there is the possibility that this case can be lost as well as won.

It is too early to be clapping and cheering.

Imagine the following scenario: the prosecution throw everything they can at Trump. Each charge is evidenced and each witness comes up to proof.

Imagine that the case against Trump could not be framed better and could not be put before the court better.

Imagine a dream prosecution, one where everything goes right.

Imagine all that and then imagine, for this is litigation and all contested litigation is ultimately uncertain, that Trump is found not guilty.

This is not actually a fanciful point: the laws being relied upon by the prosecution are not commonly prosecuted and there is doubt as to the reach of those laws.

And Trump will be fighting for his political life – and whichever lawyers he manages to employ the duration of the trial will also be seeking the best possible presentation of the defense.

There is a non-trivial possibility that Trump may be found not guilty.

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What this would mean – or at least what Trump and his supporters will take it to mean – is not that Trump has escaped condemnation and conviction.

It would instead be taken to mean complete and absolute vindication of Trump both in respect of the incidents of 6 January and of his framing of the prosecution as a “witch trial”.

The consequences of such a vindication will be profound and lasting.

Of course, this possibility does not mean that the prosecution should not go ahead.

Nothing in this post should be taken to mean that the prosecution should be aborted.

The point of this post is not about prosecution practice and discretion: indeed, as far as one can tell, the prosecution is doing a good, impressive job.

The point of this post is to counter the jubilation at the indictment.

This is high-stakes litigation, in a case which may (as they say) make law.

Perhaps the prosecution wins and, after exhausting all and any appeals, Trump is held to be criminally liable for his role. If so, those opposed to Trump can then clap and cheer.

But we are not yet near that outcome, and the implications of the prosecution not succeeding need to be taken seriously too.

A great deal rides on this case, and the outcome is not certain.

Brace, brace.

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Threads – remembering an influential moment in that 1984 film

6 July 2023

Threads is the the social media platform of the day.

(My Threads account is here – and the early impressions are positive, though further functionality needs to be added, but it is a marked improvement on the Hell-site that Twitter has become.)

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But for those of us of a certain age and from a certain place Threads has another meaning:

The film had an immense influence on me when showed at school, though not one which seems to be shared by others.

My school was a south Birmingham 1980s comprehensive, and the well-meaning, earnest progressive teachers no doubt intended that the film would make us think about the issues of nuclear war.

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As it happened, the depicted post-war apocalypse was nothing compared to the sort of things I was reading about anyway (though I am sure I really shouldn’t have been doing), and so almost all the film left me unfazed.

But.

There was one moment which stuck with me, with force, and it has shaped my political and legal thinking ever since (to the extent that my political and legal ponderings warrants being called “thinking”).

By way of background, part of the film is about some people in a bunker who were in charge – or at least regarded themselves as in charge.

All the bunker scenes have been collected here:

And in that bunker they had telephones.

Proper, bulky desk telephones, not what we have now.

And via those telephones the important people in the bunker requested things and gave orders.

That was how those in control were to keep in control – telephony was the means of transmission and obtaining intelligence.

Telephony was the – ahem – thread that kept those who governed in charge of those who were governed.

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*Spoiler Warning*

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Those in the bunker die, pretty much unnoticed by the survivors of the nuclear strike.

Eventually some come to dig them out.

And there is this moment as the torch light goes around the bunker.

Corpses, and dust, and broken things.

And also a redundant telephone:

For some reason the sight of that redundant telephone stuck with me more than any of the special effects or make-up and horrific images and awful sounds.

I could not stop thinking about it.

What happens when those who are supposedly in charge no longer have the means of being in charge?

For in any large human grouping those in charge cannot do it by personal, face-to-face dominance alone, there needs to be methods of communication and means of control.

And those methods and means are precarious, and so they cannot be taken for granted either by those who govern or by those who are governed.

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About this time in the mid-1980s I also became fixated by this image in a book I had about kings and queens, which I have featured a few times in my blogging:

The combination of the Threads telephone and this Thackeray picture led me to a lifelong preoccupation about constitutions and language and images and law – about how one small group of people in one place actually get to exert day-to-day power over people in other places.

How does this actually, practically work?

And so I ended up as a lawyer and commentator.

Of course, those with power can always resort to coercion and lethal force – but short of this last resort, there are norms and systems and lore and laws which provide how we govern and are are governed.

So how are these threads crafted and put in place, and how are they maintained and repaired?

And these systems and methods of communication and means of control can sometimes just go: whether by technical failures, or even by the loss of legitimacy and authority.

The threads can snap – or they can be cut.

And then what happens?

Well.

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Thank you for indulging me and letting me share my Threads anecdote. As today is Threads day, one way or another, I thought this would be the best time to tell it.

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The remarkable fall of Boris Johnson – and what it tells us, if anything, about our constitutional arrangements?

19th June 2023

In December 2019, Boris Johnson had the greatest prize that our constitutional arrangements could bestow.

He had led his party to a substantial majority at a general election; his party had the mandate for its proposals in its manifesto; he had the command of his cabinet and his party; and he had even stripped out of his parliamentary party many more moderate Tories.

The opposition was in disarray, and the official opposition had had one of its worst election results in its history.

Few, if any, prime ministers have even been in such a strong position.

He had the prospect of at least one parliamentary term, perhaps more.

Yet now, less than one parliamentary term later, Johnson is not only out of government, he is out of parliament.

There is no comparable downfall in our parliamentary and political history.

Perhaps this story can be understood in purely personal terms: that Johnson was the author of his own downfall.

But.

Just as every politician gains power in a particular constitutional context, every politician who loses power also does so in a particular context.

Had some things been different, had certain events and processes take another course, Johnson could well still be prime minister.

Johnson may well have willed himself into power, but he certainly did not intend to lose power.

A sequence of events meant that it became outside of his control as to whether he could continue to be prime minister, and a further sequence of events meant that it became outside of his control as to whether he would “beat” the privileges committee.

The constitution of the United Kingdom regurgitated Johnson from our body politic and spat him out.

(And the the constitution of the United Kingdom then also regurgitated Elizabeth Truss from our body politic and spat that prime minister out too, though not as far.)

Had our constitutional arrangements been more rigid – more fixed, perhaps codified – it may well be that it could have been harder to get rid of Boris Johnson from government and then from parliament.

For, to repeat, after the last general election, Boris Johnson had the very greatest prize that our constitutional arrangements could bestow, and it is difficult to see how that prize could have ever been formally wrestled away from him by any codified procedure.

Our constitutional arrangements certainly could be a lot better in so many ways – but on the specific question of the ejection of Johnson: could our constitutional arrangements actually have been better?

And if that question seems to you to have a complacent premise, there is then the far more worrying, far less complacent question: what does it say about our constitutional arrangements that such a figure was ever able to get the greatest prize our constitutional arrangements could bestow in the first place? 

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Telling the story of how the “serious disruption” public order statutory instrument was passed

14th June 2023

Here is a story about law-making told in different ways.

The law in question is a statutory instrument made under the Public Order Act 1986 – the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – which comes into force tomorrow.

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By way of background

A statutory instrument is what is called “secondary legislation” and it has the same effect as primary legislation, as long as it is within the scope of the primary legislation under which it is made.

Statutory instruments are, in effect, executive-made legislation.  They still have to have parliamentary approval, but they are not open to amendment and rarely have debate or a vote.

Often the parliamentary approval of statutory instruments goes through on the nod, but sometimes they need to have a positive vote in favour.

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The government’s version

The first way of telling the story is from the government’s perspective.

The statutory instrument was put to a vote in the House of Commons on Monday with the Home Secretary herself leading the debate.

At the end of the debate there was a contested vote, which the government won:The (elected) House of Commons having shown its approval, the House of Lords did not pass a “fatal” motion against the statutory instrument.

Instead the House of Lords passed a motion (merely) regretting the Statutory Instrument:

The vote (against the government) was as follows:

The House of Lords also had a specific vote on a fatal motion, which was defeated:
And when the official opposition was criticised by for not supporting the fatal motion, a frontbencher was unapologetic:

And this is the first way of telling this story: there was a Commons vote; the Lords showed disdain but did not exercise any veto inn view of the Commons vote; and so the statutory instrument became law as the result of a democratic legislative process.

Told this way, the story is about how laws can and are made by such a democratic legislative process

Nothing to see here.

But.

But but but.

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The constitutionalist version

There is another way of telling this story.

This account starts with the Public Order Act 2023 when it was a bill before parliament.

At a very late stage of the passage of that bill the government sought to amend it so as to include provisions that were substantially similar to what ended up in the statutory instrument passed this week.

The government failed to get those amendments through the House of Lords. and so they were dropped from the bill before it became an Act.

As a House of Lords committee noted:

The Home Office could not answer these basic questions:For this committee to say that it believes “this raises possible constitutional issues that the House may wish to consider” is serious stuff.

What had happened is that the Home Office, having failed to bounce parliament into accepting these amendments into primary legislation by very late amendments, has come up with this alternative approach.

Told this alternative way, the story is not about how laws can and are made by a democratic legislative process.

Instead, the story is about how a democratic legislative process can be frustrated and circumvented by the executive.

Instead of using primary legislation so as to make substantial (and illiberal) changes to the law, the government has used statutory instrument which cannot be amended or considered in detail, and has used its whipped House of Commons majority to face down Lords opposition.

Plenty to see here.

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The story may continue

Yet this is not how the story (told in either way) may end.

The thing about statutory instruments is that, unlike primary legislation, they can be challenged at the High Court.

This means that there can sometimes be a sort of constitutional see-saw: the convenience of using statutory instruments (as opposed to primary legislation) can be checked and balanced by an application for judicial review.

And that is what the group Liberty is doing, and its letter before claim is here.

In essence, the argument is that – notwithstanding the parliamentary approval – the statutory instrument is outside the scope of the relevant provisions of the Public Order Act 1986.

Liberty seems to have a good point, but any challenge to secondary legislation is legally difficult and it is rare that any such challenge ever succeeds.

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The moral of the story?

The moral of the story, however it is told, is perhaps about the general weakness of our constitutional arrangements in respect of limitations placed upon rights and liberties.

A government, using wide enabling legislation, can put legislation into place that it cannot achieve by passing primary legislation.

This cannot be the right way of doing things, even if Labour is correct about these illiberal measures having the support of the House of Commons.

There are some things our constitutional arrangements do well – and here we can wave at Boris Johnson and Elizabeth Truss having both been found repugnant and spat out by our body politic.

But there are things our constitutional arrangements do badly – and the increasing use (and abuse) by the government of secondary legislation to do things they cannot (or will not) get otherwise enacted in primary legislation worrying.

And a government casually and/or cynically using (and abusing) wide enabling powers is not a story that usually ends well.

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What if acceptance of Boris Johnson’s resignation from the House of Commons had been delayed – or even refused?

12th June 2023

For a brief, wonderful moment today it seemed that yet more constitutional drama could be squeezed out of the ongoing antics of former prime minister Boris Johnson.

On Friday Johnson announced his resignation from the House of Commons:

“So I have today written to my Association in Uxbridge and South Ruislip to say that I am stepping down forthwith and triggering an immediate by-election.”

Some (including me) took his deftly worded statement to mean that he was resigning as a Member of Parliament with immediate effect.

But look where “immediate” is actually inserted in his statement.  Clever.

In fact, Johnson did not resign from the House of Commons on Friday.

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Of course – strictly speaking – a Member of Parliament cannot “resign” – though there is no point in making this distinction in general commentary.

What a voluntarily departing Member of Parliament has to do is to place themselves in disqualification from sitting in the House of Commons.

And in practice, this means applying for and being appointed to one of two ancient offices for profit.

This is section 4 of the House of Commons Disqualification Act 1974:

In practice what this means is that a Member of Parliament has to make an application to the Chancellor of the Exchequer for appointment to one of these offices – and when the Chancellor of the Exchequer endorses the warrant of appointment, the parliamentary seat becomes vacant.

This, in turn, means – thought this is a distinct step – a writ for a by-election can then be moved in the House of Commons.

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This is what Erskine May, the parliamentary rulebook says:

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Usually, there is no problem with any of this pantomime – for usually such a resignations are one-offs and occasional.

And so normally the appointments gently alternate between the two ancient offices.

If more than two Members of Parliament resign at once – as when the Northern Irish unionist Members of Parliament did in 1985 – the appointments have to be staggered so that each office is nominally filled in turn.

These are the lists from Wikipedia of the most recent appointments to both offices, and the reasons for the Member of Parliament leaving the House of Commons:

And although the system does not really make much sense, and is based ultimately on a constitutional fiction (there is no pay – or profit – for holding the office), it works.

There may be no way of resigning as a Member of Parliament in a technical sense, but there is a means of doing so by employing some quaint, archaic mumbo-jumbo.

It is another example of how our constitutional arrangements miss the direct point, and so we have to have a charming work-around instead.

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But.

Earlier today there was the prospect of Johnson bringing excitement to another odd little constitutional corner – though here unwillingly on his part.

(And remember constitutional matters should not be exciting, they should be dull.)

What if…

…the Chancellor of the Exchequer did not appoint Johnson to one of these two offices?

What if, in effect, Johnson’s resignation from the House of Commons was delayed or even refused?

According to the fine experts at the House of Commons Library, it is possible for the appointment to be refused by the Chancellor of the Exchequer – thereby preventing the resignation from taking effect- though this has not happened since Victorian times:

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There is an argument that a Member of Parliament facing an imminent report into their conduct should not be able to resign and avoid any sanction.

And if, in such circumstances, the Chancellor of the Exchequer refused to make the appointment until after the Commons voted on the report and any sanction, it is difficult to see what Johnson could have done about it.

(Though it would have been fascinating and fun to see whether this exercise of discretion by a government minister was amenable to judicial review by the High Court.)

Johnson would have been forced to stay as a Member of Parliament while the privileges committee report was debated and any sanction voted on.

And it is hard to see how he could have avoided it.

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But alas, we shall not have this constitutional amusement.

For this afternoon Johnson resigned.

Johnson was appointed to the stewardship of the Chiltern Hundreds, and Wikipedia was updated accordingly.

So we will have to wait a bit longer for our next constitutional excitement.

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For more on this procedure, please read the excellent House of Commons Library briefing.

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Why we now don’t just have “proper” political scandals

23rd May 2023

Today in parliament, during a debate on an urgent question related to the conduct of the current Home Secretary, a backbencher asked a striking and thought-provoking question:

“What’s wrong with this country? We used to have proper scandals abour sex or money, or about PM’s invading Iraq…”

There is an answer to this question, though perhaps not the one he wants or expects.

The reason is that the informal and often hidden ways these sort of issues used to be dealt with are no longer followed.

The hyper-partisanship and opportunism of ministers – especially in the last five or so years – means there is now a general attitude of getting away with things.

The unseen checks and balances provided by self-restraint – the soft constitutional conventions, as opposed to hard(ish) constitutional law – are old hat.

Cummings and Johnson may well be gone – but their damage to our constitutional arrangements lingers.

And so – there being no other way to deal with, say, the conduct of the current Home Secretary – it has become a parliamentary and public matter.

There is nothing as a buffer before any mess-up becomes part of day-to-day politics.

And unless ministers relearn the checks and balances of self restraint – in a word, “constitutionalism” – then it may be that there will be a lot more time and attention on these not “proper scandals”.

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The significance of the resignation of Dominic Raab

21st April 2023

The end, when it came, was not pretty.  But then again, endings rarely are.

The resignation letter was extraordinary:

The impression was that the letter was drafted in a rush – the sort of draft one would put together to get something out of one’s system, before composing something more measured.

The letter was accompanied by a 1,100 word piece in the Telegraph which was published eighty-or-so minutes later:

As a published article, it presumably would have been commissioned, edited and lawyered before publication – and so it may have been written before the letter.

But it said much the same.

One remarkable thing was that both the letter and the published article were in the public domain before the actual report – presumably to “frame the narrative” as a political pundit would put it.

And then the report was published:

And it became obvious why Raab was so anxious to “frame the narrative”– as parts of the report were, as a lawyer would put it, “adverse”.

This did not seem to be the usual, coordinated exchange of letters with a prime minister, which one would expect with such a senior resignation.

Instead, it looked a mess.

And one can only wonder about how this mess relates to the unexpected delay from yesterday, which was when the report was expected to be published and the prime minister was expected to make a decision.

What seems plain, however, is that Raab was pressed into a resignation.

If so, there is a certain irony, as it was the threatening of unpleasant outcomes to people who did not comply with his wishes/demands which was the subject matter of some of the complaints.

It therefore appears that Rishi Sunak was more skilful in this cost-benefit power-play than Raab.

In his resignation letter, Raab twice warns of the “dangerous” outcome if he did not get to continue on his way.

But in practice, Sunak by being silent and not “clearing” Raab yesterday placed Raab in an increasingly difficult situation, where it was becoming obvious even to Raab that unless he resigned he would be sacked.

Some may complain that Sunak “dithered” – but another analysis is that this former head boy and city banker patiently out-Raabed the school-cum-office bully.

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Beginnings, like endings, are also often not pretty.  And rarely are they ideal.

But, at last, the Ministry of Justice is free from perhaps the worst Lord Chancellor of modern times.

(Yes, worse even than Christopher Grayling or Elizabeth Truss.)

Over at his substack, Joshua Rozenberg has done an outstanding post on why – in substantial policy and administrative terms – Raab was just so bad.

And on Twitter, the fine former BBC correspondent Danny Shaw has also detailed the many failings in this thread:

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The Ministry of Justice is in an awful state.

The departing minister’s obsession with prioritising symbolic legislation such as the supposed “Bill of Rights” and a “Victims” Bill – which mainly comprises the shallow sort of stuff too often connected to the word “enshrining” – was demonstrative of the lack of proper direction for the ministry.

And it is significant that it was only during the interruption of the Truss premiership, with a new (if temporary) Lord Chancellor that the barristers’ strike was resolved.

Joshua Rozenberg sums up that telling situation perfectly:

“We saw an example of Raab’s indecisiveness in the way handled the strike by criminal defence barristers last summer. Increasing delays — caused initially by government-imposed limits on the number of days that judges could sit — were rapidly becoming much worse.

“Raab seemed like a rabbit frozen in the headlights, unable to decide which way to turn. The problem was solved by Brandon Lewis, who replaced Raab for seven weeks while Liz Truss was prime minister. He simply paid the barristers some more money.

“It was not so much that Raab was ideologically opposed to making a pay offer. On his return to office, he made no attempt to undermine the pay deal reached by Lewis. It’s just that he seemed unable to take a decision.”

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Now decisions can be made.

Gesture-ridden draft legislation can be abandoned.

And the grunt-work of actually administering our courts and prisons and probation service can take place.

That grunt-work will also not be pretty, and the incoming Lord Chancellor will not get easy claps and cheers that come with attacking “lefty” lawyers and “woke” judges.

But a new start can be made, and all people of good sense should wish the new Lord Chancellor well.

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From ornament to instrument – how current politics are forcing constitutions to work in the UK and USA

6th January 2022

This is just a short post, prompted by the ongoing inability of the Republicans in the United States House of Representatives to elect a speaker.

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There is usually no problem in a speaker being elected: the first day of the new House of Representatives is usually a ceremony, attended by the smiling families of new congressmen and congress women.

But now we are on the third day of voting, because a group of hardline Republicans are contesting what would normally be a coronation.

Two years ago today (as I set out in last week’s Substack essay), the counting and certification of electoral college votes was also converted from being a mere ceremony to something far more politically vital.

Indeed, a plan was in place to use what was normally (again) a coronation into an opportunity for the defeated president Donald Trump to somehow retain office.

And over here, during the last days before the United Kingdom left the European Union, there was an attempt to use a prorogation of parliament so as to force through a no-deal exit.

That (purported) use of the prorogation was contested and then quashed by the Supreme Court.

But usually prorogations are dull and straightforward affairs, of little interest even to political obsessives.

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Our current volatile politics keeps converting dull and ceremonial elements of our constitutions into things that matter.

Our constitutional arrangements are being forced to work, where they previously only had to decorate.

To an extent this is a good thing: like all the functioning parts of a car occasionally being tested for a MoT test.

But it also may be a bad thing, as too much stress may mean that element of the constitution buckles and breaks.

Either way, it is certainly exciting.

But, as we know, constitutional law should not be exciting, it should be dull.

Day-to-day politics should take place within the parameters of a constitution, not constantly pressing on the edges, straining them as far as they will go.

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