Why is it so difficult to prosecute for the sale and purchase of peerages?

7th June 2021

A person is in the news because they donated £500,000 to a political party days after taking a seat in the house of lords.

This post is not about that person.

I have no idea about the circumstances of that appointment. and so I do not make any allegations in respect of those circumstances – and this is not just safe libel-speak, I genuinely do not know, and nor (I suspect) do you.

(And anyone commenting below who makes an allegation of criminality in respect of that appointment – or anyone else – will not have their comments published – this is not Twitter, you know.)

This post is instead about the legislation that is usually mentioned when such appointments are made: the Honours (Prevention of Abuses) Act 1925.

It is a curious statute – not least because the offences it creates appear hardly to have ever been successfully prosecuted.

(The one early exception appears to be Maundy Gregory.)

 

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The legislation has one substantive clause that in turn creates two offences.

The first offence is (and in language itself as cumbersome as the name, title and style of any obscure peerage):

‘If any person accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, or for any purpose, any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour.’

Let’s try to make sense of this word-soup.

This first offence relates to the person who is (in effect) on the supply-side of a relevant transaction – the person ‘accepting or obtaining’ the ‘inducement or reward’.

This supplier has to be shown to (a) accept, (b) obtain, (c) agree to accept, or (d) attempt to obtain [x] in return for [y].

The [x], in turn comprises two things: (a) any gift, money or valuable consideration which also has the quality (b) of being an inducement or reward for procuring or assisting or endeavouring to procure the grant of [y].

This means proof of a ‘gift, money or valuable consideration’ is not enough: there also needs to be proof of its purpose.

The [y] is the most straightforward: ‘the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant’.

What all this means is that showing there is cash and an appointment is not enough: there has to be proof of intention to the criminal standard of proof – that is (in general terms) beyond reasonable doubt.

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The second offence deals with (in effect) the demand-side:

‘If any person gives, or agrees or proposes to give, or offers to any person any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour.’

There is no need to unpack this like the first offence – but you will notice that again there is the need to prove that the ‘gift, money or valuable consideration’ is for the purpose of bing an inducement or a reward.

So, as before, showing there is cash and an appointment is not enough – there needs to be proof of intention.

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Those with good political memories will recall the ‘cash for honours’ investigation of 2006-2007.

This investigation included the extraordinary moment of a dawn-raid on the home of a government official and the questioning by the police of the then prime minister.

All very dramatic.

But nothing came of it.

No charges were brought.

The Crown Prosecution Service provided detailed, legalistic reasons for their decision not to prosecute.

The CPS averred that not only did it need to prove intention (on both sides) but also that it also had to prove that there was an agreement:

‘If one person makes an offer, etc, in the hope or expectation of being granted an honour, or in the belief that it might put him/her in a more favourable position when nominations are subsequently being considered, that does not of itself constitute an offence. Conversely, if one person grants, etc, an honour to another in recognition of (in effect, as a reward for) the fact that that other has made a gift, etc, that does not of itself constitute an offence. For a case to proceed, the prosecution must have a realistic prospect of being able to prove that the two people agreed that the gift, etc, was in exchange for an honour.’

These CPS reasons were compiled and endorsed by some very clever criminal lawyers – though the rest of us may struggle to see the absolute need for proving an agreement under the 1925 Act.

Nonetheless the CPS insisted:

‘In essence, the conduct which the 1925 Act makes criminal is the agreement, or the offer, to buy and sell dignities or titles of honour. Section 1(1) is drafted in wide terms and captures any agreement in which a seller agrees to procure a peerage in return for money or other valuable consideration. Section 1(2) is also drafted in wide terms and captures any agreement in which a buyer agrees to provide money or other valuable consideration, in order to induce a seller to procure a peerage.’

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If the CPS are correct in this interpretation and construction of the statutory offences, then this makes it hard, if not impossible, for the offence ever to be prosecuted successfully.

And, even without the CPS gloss, the requirement to show intention made the offence hard to prosecute in the first place.

There may be other laws which may apply – for example, fraud legislation – but not the one piece of legislation that actually has the sale of honours as its dedicated purpose.

For, as long as those involved make sure there is no paper-trail and that the choreography of nods-and-winks are done in the right order, there is no real danger of any prosecution under the 1925 Act.

What the 1925 Act prevents is the blatant Lloyd-George style of an open market for the sale and purchase of honours.

For a statute to only regulate (in effect) the seemliness of the trade in peerages and other titles is a very, well, British (or English) thing to do.

Otherwise, the 1925 Act is an ornament, not an instrument – and so it is as much a mere constitutional decoration as any ermine robe, and is just as much use.

*****

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The Prime Minister’s disregard for rules-based regimes

6th June 2021

This is just a short post today – more of a signpost – to point you towards an interesting and thought-provoking post by Hannah White at the Institute of Government.

Her post brings together various examples of the contempt in which the current prime minister holds a range of rule-based regimes – showing that for Boris Johnson, to echo Leona Helmsley’s supposed words, rules appear to be for little people.

There are, of course, a number of problems with the prime minister’s approach.

For example, a great deal of the constitution of the United Kingdom is based on self-restraint and convention – and, although many prime ministers have breached constitutional norms, none have done so as openly and unapologetically as the current prime minister.

Another problem is that – especially at the time of this pandemic and also as the United Kingdom adjusts to its post-Brexit future – there will be a need for various rules to be followed as well as made.

And it is difficult to insist on others keeping to the rules when the head of the government himself sees compliance with rules as, at best, optional.

And perhaps the biggest problem is that there is a sense of checks and balances simply not mattering any more – a further move towards a central command polity.

Of course, in our present day hyper partisan political culture, few will care about such things.

The constitution of the United Kingdom is now, essentially, whatever Boris Johnson can get away with.

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What is Force Majeure? And why is it now being mentioned in the context of Brexit?

18th May 2021

A historian of ideas – probably Isaiah Berlin – once averred that most philosophical systems were ultimately simple affairs.

What made them complicated, it was said, were the elaborate defences and anticipations of objections so as to make the arguments advanced harder to attack or dismiss.

I have no idea if this is true, as I have no head for philosophy, but I have often thought the same can be said for contracts.

Most agreements are also relatively simple – and most of us, every day, enter into oral contracts which are nothing more than ‘I give you [x] in return for [y]’.

Written out, such contracts would not need to be longer than one sentence – a single clause.

What makes a legal agreement complicated – and what can make a written contract go on for hundreds of pages of clauses and schedules – are the provisions dealing with what will happen if one party does not do [x] or the other party does not do [y].

This is because most written contracts are not there for when things go well: they are there for when things go badly.

The more provisions that are in a contract, the more allocations of risk and protections for the parties if there are problems.

For high-value or significant agreements, teams of lawyers will painstakingly (and often expensively) go through every possible and foreseeable eventuality, and will then allocate risk accordingly as between the parties.

There will also be detailed provisions setting out the processes for resolving and remedying problems.

In most circumstances, those provisions will not ever be used.

(As a general though not universal rule, the more effort that goes into putting a contract together, the less scope for genuine disputes later.)

But sometimes a thing can happen to disrupt an agreement that has not been addressed in the agreement.

This disruptive event can have three qualities: (1) it will be outside the control of the parties (else all you would have is a potential breach); (2) it will be outside of the allocations of risk in the agreement (else the agreement already deals with what will then happen); and (3) it will affect the performance of obligations under the agreement (else it would not matter).

In legal language, such a disruptive event is said to ‘frustrate’ the agreement.

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In English contract law, such frustrations often lead to unfair and uncertain results – and every law student will know of the so-called ‘coronation cases’.

Lawyers elsewhere, however, approached this sort of predicament differently and developed the doctrine of ‘force majeure’.

A force majeure event is a thing that (1) is outside the control of the parties; (2) is outside of the allocations of risk in the agreement; and (3) affects the performance of obligations under the agreement.

If the doctrine applies there is then some certainty of what will then happen in the event of a force majeure event – sometimes the consequences can be agreed between the parties, or the consequences may be provided for under the general law.

Force majeure, however, is a residual thing – if the parties have foreseen the particular risk and allocated that risk then the terms of the agreement should take priority.

This means (generally) the more detailed the agreement, the more limited the scope for force majeure.

The analysis set out by me above is from the perspective of an English commercial lawyer but the doctrine also exists in what is called ‘public international law’ – that is the law that regulates relations between countries (and also international organisations):

You will see the public international law document quoted provides that a thing cannot be a force majeure event if (a) it is because of the conduct of the state seeking to rely on it and (b) the risk of it happening has not been allocated.

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What all this means is that it is often difficult in practice to rely on force majeure when there is in place a detailed and specially negotiated agreement.

This is because the parties will have foreseen and addressed most practical problems.

And even if there is a force majeure event, that also does not mean it is a ‘get out of an agreement free’ card – as all that may result is a temporary relief from fulfilling an obligation until the force majeure event is over.

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The reason why force majeure is in the news is because David Frost, the United Kingdom minister responsible for Brexit negotiations, appears to think that force majeure can be relied on to relieve the United Kingdom from its obligations under the Brexit withdrawal agreement and its Northern Ireland protocol.

The news report says:

‘Force majeure is a legal concept through which a party can demand to be relieved of its contractual obligations because of circumstances beyond its control or which were unforeseen.

‘The suggestion is contained in a 20-page letter the UK has sent to the European Commission.’

To which the response should be: good luck with that.

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In practice, any reliance on the doctrine of force majeure by the United Kingdom will come down to two particulars: (1) what is the (supposed) particular force majeure event, and (2) what is the particular obligation that is (supposedly) affected by that event.

Until this is known, one cannot be completely dismissive.

But.

It is difficult to believe that there is any event that (1) affects the performance of a particular obligation under the Northern Ireland Protocol which (2) is not within the control of one of the parties and (3) is not addressed in the protocol.

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And in response to the thread on Twitter on which this blogpost was based, this scepticism was endorsed by Jonathan Jones, who was the United Kingdom’s chief legal official during the Brexit negotiations:

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That the United Kingdom government had not thought through or cared about the detail of the withdrawal agreement was not unforeseeable.

It was, to use another technical legal term, bleedingly obvious.

It is difficult to conceive of anything that could be a force majeure event that is not already subject to the provisions and processes of the Northern Ireland Protocol.

On the face of it, therefore, the resorting to ‘force majeure’ by the United Kingdom looks desperate – a makeweight argument deployed for want of anything more compelling.

There is, however, the delicious legal irony in the circumstances of the United Kingdom seeking to rely on a French legal doctrine used to cure the inadequacies of English law-making.

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

11th May 2021

Well, that was quite the Queen’s Speech.

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

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

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

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

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Of course: this is not a surprise.

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

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

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

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

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

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

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

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The British Museum, looted artefacts, and the law

 4th May 2021

This post is prompted by an outstanding and thought-provoking book about museums.

The book is The Whole Picture: The colonial story of the art in our museums & why we need to talk about it by Alice Procter (Amazon page here – but do order from your local bookseller if you can).

Two thoughts that the book provoked for me were about the British Museum.

This post sets out those two thoughts and where those thoughts then led me.

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The first thought was a recollection of this eloquent and plausible 2004 justification by the museum’s then director Neil MacGregor of the museum’s position relating to controversial items in its collection. 

The passage in that piece that struck me at the time and has stayed with me was this about the founding of the museum back in 1753 (and I have broken up the paragraphs for flow):

‘To ensure that the collection would be held for the benefit of citizens, and not the purposes of the crown, Parliament hit upon a solution of extraordinary ingenuity and brilliance.

‘They borrowed from private family law the notion of the trust. The decision that the museum would be run not as a department of state, but by trustees had – and still has – crucial implications.

‘Trustee ownership confers duties rather than rights. Trustees must derive no benefit for themselves, but hold the collection exclusively for the advantage of the beneficiaries.

‘The collection cannot be sold off.

‘The museum was set firmly outside the commercial realm, a position epitomised by the principle of free admission.

‘Even more astonishingly, it was in large measure removed from the political realm.

‘Trustees are not allowed by law merely to follow government orders: they have to act as they judge best in the interest of beneficiaries, including, crucially, future and unborn beneficiaries.

‘Who are the beneficiaries for whom the trustees hold the collection?

‘Startlingly, they are not just the citizens of Britain.

‘The British Museum was from the beginning a trust where the objects would be held “for the use of learned and studious men [in 1753 they were mostly men], both native and foreign”.

‘In his will, Sloane had declared his desire that his collection should be preserved “for the improvement, knowledge and information of all persons”.

‘The rest of the world has rights to use and study the collection on the same footing as British citizens.’

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I have often thought about that passage.

It is convincing as far as it goes – once an item is part of the collection it is safeguarded and retained for the benefit of all.

But.

There was something missing.

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Here we come to the second thought provoked by the book.

This is a legal principle – known to lawyers and also normal people – which is known in its Latin form nemo dat quod non habet.

In plain language: a person cannot have a greater property right (‘title’) in a thing than the person who provides them with the thing.

So if I provide you with a thing – but I do not own it to begin with – then you will not own it either.

Applied to the British Museum, it seemed to me that it was all very well the British Museum boasting of how well an item in its collection will be looked after under the terms of its trust – but that was no answer if the original acquisition was unsound.

Nemo dat quod non habet – or garbage in, garbage out in legalese.

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So with these two thoughts I then wondered: what is the position in respect of an artefact in the British Museum if the acquisition was tainted?

That, for example, the person providing the item had stolen it?

And this query led me to the British Museum Act 1963 and the 2005 case of the Attorney General vs the British Museum.

In essence, once an item is part of the British Museum collection, the 1963 Act provides only only a narrow basis for the trustees to ‘dispose’ of the items.

This narrow basis is primarily set out in section 5 of the 1963 Act.

(There is also an exception for transferring an item to another museum – and there is an exception for the return of human remains.)

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So unless an item in the collection is within the scope of section 5 of the Act then, in effect, the trustees of the British Museum cannot at law give back the item – regardless of the circumstances of its acquisition.

What this meant in practice was illustrated in the 2005 case.

The museum had purchased after the second world war four items that has been looted by the Nazis from their owner.

The issue before the court was whether there was implicit exception to the terms of the British Museum trust in respect of when there would be a moral obligation to return the items.

The judge – the very head of the court of chancery and equity – held that the trustees did not have the power to do this, even if they wanted to do so (which they plainly did).

Any application of the principle of nemo dat quod non habet appears to have been precluded by operation of the Limitation Acts.

The judge did indicate in passing that if title in the items had not passed on acquisition then the items would not have (technically) formed part of the collection of the first place and thereby the terms of the trust and section 5 would not apply.

But it would presumably be out of time for title in respect of a 1945 acquisition to be contested sixty years later.

Happily, there was a (fascinating) recommendation by the (wonderfully named) Spoliation Advisory Panel that the heirs to the person whose art had been looted be compensated by an ex gratia payment.

And since the 2005 case, there is now the Holocaust (Return of Cultural Objects) Act 2009 that provides a statutory basis for the return of items looted by the Nazis.

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For items looted by the Nazis, therefore, the legal position is now that the loot can be returned – even if it is part of the collection.

But what of items looted by others at other times and other places – why should the unfairness caused by only one manner of theft be addressed?

To its credit (to an extent) the British Museum is open that this is an issue.

On its press page, it has links to explanations as to its positions in respect of what it calls ‘contested items’.

(It also has a page setting out how it has settled the Nazi loot claims.)

The impression that the British Museum is no doubt seeking to promote with these pages is that it is taking the issues seriously and is sensitive to grievances.

But.

The attempt to give this impression is not convincing.

This is partly because the leadership of the museum is still wedded to the notion that the terms of the trust gives it some elevated status that means the grubby question of acquisition is not relevant.

In 2018, the current chair of the British Museum trustees wrote the Guardian in almost identical terms to those employed by MacGregor in 2005:

‘In what was one of the great acts of the Enlightenment, in 1753 parliament established the British Museum as a trust, the first of its kind in the world, which was to be run independently of politics and of parliament. This autonomy has been central to its scholarship and public purpose for the past 265 years. […]

‘Trustees today have three broad responsibilities: to conserve and enhance the collections for ever; to generate new knowledge, especially by supporting the kind of research that is only possible in a large encyclopaedic museum; and to make the collections accessible to the whole world. They work with colleagues across the UK and around the world to share knowledge and objects from their collections as widely as possible. But they don’t see the objects for which they are responsible as negotiating chips in a political debate.’

But again, this go-to ‘trust’ defence says nothing to the issue of how the items were acquired.

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In 2019 one trustee resigned, and she gave as one of her reasons (which is broken up for flow):

‘In November 2018, a French report commissioned by President Macron recommended the full restitution of looted African artworks.

‘It burst open the debate over the repatriation of cultural artefacts. Museums, state officials, journalists and public intellectuals in various countries have stepped up to the discussion.

‘The British Museum, born and bred in empire and colonial practice, is coming under scrutiny. And yet it hardly speaks.

‘It is in a unique position to lead a conversation about the relationship of South to North, about common ground and human legacies and the bonds of history.

‘Its task should be to help us all to imagine a better world, and – along the way – to demonstrate the usefulness of museums.

‘This would go some way towards making the case for keeping its collection in London.

‘But its credibility would depend on the museum taking a clear position as an ally of coming generations.’

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It is correct that the provisions of the 1963 Act prevent the trustees from giving away or giving back items in its collection.

And the operation of the Limitation Act means that, as the chair of the spoliation panel said in one report, the position of the museum is legally impregnable. 

Nemo dat quod non habet may well be a principle of law – but it is subject to statutory bars and exclusions.

But.

As with the items looted by the Nazis, where there is a will there is a way.

Legislation may be required – similar to the 2009 legislation for holocaust items.

And even without legislation, the position of the museum – but-for-the-legislation – could be made more clear – as it was in the 2005 case above.

But instead the impression one gains from reading around the subject is that the museum hides behind terms of the 1963 Act – that it is an excuse not for thinking seriously about the issue.

For even if the Limitation Acts rob the principle of nemo dat quod non habet from having practical legal consequences, it still has the full force of a moral imperative.

Instead of rhapsodising about the heady genius of the 1753 trust, the leadership of the museum should be conscious that nothing about the terms of the trust goes to how the items were acquired.

Of course, specific ‘contested’ items will raise specific concerns and objections.

And there is the possibility that items could leave the collection only to be destroyed or lost to the black market – though this risk should not be over-stated, still less assumed.

But as a general rule, the British Museum and other museums should accept morally (if not legally) that if an item was acquired when those from whom the item was taken did not give permission then, as a matter of principle, the item should be returned.

And if the law does not permit this, then the museum should be unafraid to aver that the law should be changed.

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

2nd May 2021

It is a familiar routine.

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

There is nothing wrong with this demand.

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

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

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

But.

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

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

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

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

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

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

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

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

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

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

There is no easy and obvious answer.

Perhaps we should have an inquiry…

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Genuine accountability, mock accountability, and the lies of Boris Johnson

28th April 2021

Today’s prime minister’s questions was extraordinary.

On the two issues of the moment the prime minister Boris Johnson was relentlessly unconvincing and evasive.

In respect of the alleged ‘dead pile high’ quote, it is plausible and – according to the media – well-sourced.

In respect of who paid for the Downing Street decorations, the verbal dodges to the simple query of who initially paid for an invoice were painful to watch.

But.

Not many will care.

A significant number of the population will, no doubt, sympathise with the sentiment which the prime minister expressed about lockdown, and more than a few will agree with the actual wording.

Similarly, the question of the refurbishment invoice will not matter to those who do not mind who paid as long as it was not the taxpayer.

Perhaps there will be hard evidence – either compelling on-the-record testimony or even an audio recording – to prove Johnson as a liar.

Yet even then the only surprise would be that he has been so starkly caught out.

The sad, inescapable truth is that Johnson conducts himself as if he is free from accountability.

And the reason he is able to do this is simple: it is because he can.

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Let us look at the available mechanisms of accountability.

Johnson and his government will avoid, as long as possible, any formal inquiry as to their conduct in respect of the coronavirus pandemic.

The prospect of an electoral commission investigation is difficult to get excited about, given their impotence in respect of the lack of compliance during the referendum.

And Johnson just freely lies to parliament.

The examples – all of which are documented and verifiable – just accumulate.

Almost nobody cares.

We have more internal ‘inquiries’ – which may or may not report, or even be heard from again.

Few people keep track.

And as Fintan O’Toole observes, Johnson is not now even bothering to lie in prose:

‘It’s not when Boris Johnson is lying that you have to have to worry. If he’s lying, that just means he’s still breathing. No, the real danger sign is the gibbering. It’s what he does when he can’t be bothered to think up a lie.’

*

Against this pervasive mendacity, those organs of the state that are able to check and balance the executive are being undermined or removed: the independent civil service, the diplomatic corps, the independent judiciary, and so on.

All because – at last – the United Kingdom now has a prime minister willing – and shameless enough – to exploit to the full the (ahem) opportunities that the prime minister has with a parliamentary majority.

Eventually, of course, Johnson’s hubris will meet nemesis – just as he himself eventually came to meet the costs of the Downing Street refurbishment.

And here we are lucky – for if we had a political leader who was as serious in retaining power as, say, Vladimir Putin, we would have few constraints to look to for checking and balancing power.

Johnson is what we get, however, when politicians stop believing (or affecting to believe in) the ‘good chaps’ theory of the constitution.

Tuttery is insufficient – and the tutting could be three times as loud, and it would still make no difference.

*

There are indications that political and media supporters of Johnson are moving against him.

If so, there could be a mild political crisis and that this may be enough to dislodge Johnson from office.

But this would not be through any application of any constitutional check or the operation of any constitutional balance.

For all of Johnson’s sheer and endless casual dishonesty, there has been nothing the constitution could do to stop him.

Even if he was proven to have lied to parliament, that would mean nothing politically if he still had support of the majority of members of parliament.

*

And on a final note.

Usually at this point of this sort of exposition, someone will aver that all this shows the need for a written (that is, codified) constitution.

The universal panacea for every political ill.

But.

A written constitution is as likely to entrench executive power than to limit it.

The problem is not the type of constitution.

The problem is instead a related one: the failure of constituionalism.

And while Johnson’s brazen disregard for constitutional norms is tolerated, there is no point changing the rules of the game, for he would disregard those rules too.

The problem is a political one: and the solution is thereby to show that this conduct means he loses power.

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What should we do with a former prime minister?

19th April 2021

The last former prime minister to go to the house of lords was nearly thirty years ago.

Margaret Thatcher became a peer in 1992, when she stood down as a member of parliament.

This followed the similar examples of other prime ministers who entered the house of lords when ceasing to be a member of parliament: Alec Douglas-Home (1974), Harold Wilson (1983) and James Callaghan (1987).

Edward Heath instead stayed on as a member of parliament after losing office in 1974 until 2001.

And, in general, this accorded with what had always happened – former prime ministers continued in parliamentary and public life.

(With the occasional exception such as Macmillan, and even he accepted a peerage eventually.)

Since the example of Thatcher, no former prime minister has become a member of the house of lords.

John Major, Tony Blair, Gordon Brown, David Cameron: all promptly left the commons after losing office but have stayed – at least formally – outside of Westminster.

Only Theresa May – still a member of parliament – contributes to parliament as a former prime minister.

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Until recently there was no issue about what former prime ministers did, because former prime ministers became (willingly or not) elder statesmen and stateswomen.

Coming together from time to time to pose with the queen.

*

But like police officers, former prime ministers seem to be getting younger.

And, perhaps because of the rules on disclosure of business interests, former prime ministers do not become members of the house of lords.

Former prime ministers instead appear to have business and public speaking careers instead – though, to his credit, less so with the example of Brown.

So we have a somewhat novel feature on the political landscape: the (relatively) young former prime minister commercially active outside of parliament.

And what, if anything, should we do with such individuals?

Should they be under special rules – distinct from other former ministers?

Should they have generous pensions – so that they do not resort to commercialising their unmatched connections?

Should they be compelled to become peers, so that the disclosure rules apply to them too?

Or should we just let them get on with whatever they wish to do?

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The office of prime minister is unique – and it thereby follows that the contacts and knowledge of a former prime minister will also be exceptional.

Of course: we could always rely on the ‘good chap’ theory of the British constitution – for, of course, no former prime minister would do such unseemly things as texting ministers for contracts for a business.

Ahem.

There is a problem – but less obvious is how to fix it.

What do you do with a former prime minister?

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It is time for lobbying to return to the lobby – why transparency is more important than more rules

18th April 2021

Consider the following two statements :-

‘There should be a law against it.’

‘It has not broken any laws.’

Both of these statements are common utterances in political conversation, and they are both possibly said by any of us on depending on circumstance.

Both statements seem to be different.

Yet both these statements are about the same situation: (a) a wrong has happened and (b) no law has been broken.

The difference between the statements is the attitude of the person making the statements, whether ‘something should be done’ or ‘there is nothing to see here’.

No principle or substance separates the two statements, only political expediency.

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The prompt for the observations above is, of course, the unfolding lobbying scandal in the United Kingdom.

The former prime minister David Cameron and certain former officials have been shown to be doing things which, in the view of the many if not the few, they should not have been doing.

But, as this blog and others have averred, the individuals concerned have not broken any rules because (it would seem) there are no rules to break.

A cynic would say that a this is the reason why the current prime minister has ordered an investigation, as it will be inevitable that the individuals will be ‘cleared’ of any rule-breaking.

But being ‘cleared’ of any rule-breaking is not the same as being exonerated of any wrong-doing.

*

The alternative response to the current situation is to call for more rules.

This in part stems from the view – almost a surviving form of magical thinking – that a thing will not happen because there is a rule against it.

Laws as spells.

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But what seems to be needed here is not so much more prohibitions, and more codes to (creatively) comply with, but more transparency.

There will always be lobbying – and there is nothing inherently wrong in a democracy with any person seeking to influence those with power.

The important thing is that it is not hidden from view.

That the public can see, if it wishes, the influences being exerted on public policy.

That there are public processes in place for those approaches and exchanges to take place.

In a word: a lobby.

Think about the word, which the internet tells us is defined as:

‘a room providing a space out of which one or more other rooms or corridors lead, typically one near the entrance of a public building’.

And this is the source of the word ‘lobbying’.

Lobbying took place in a lobby: a public or at least quasi-public space.

The time has perhaps come for the practice of lobbying to go back to its root – and for there to be a formal (and, if need be, virtual) lobby where there these exchanges happen and can be seen to happen.

It is perhaps time for the return of the lobby.

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Constitutions and court-packing

16th April 2021

Over in the United States there is a discussion about ‘court-packing’.

In particular, the question is about the new president should seek to nominate additional justices to the supreme court.

Some liberals and progressives are aggrieved at the current composition of the court.

A number of justices were nominated by Republican presidents who had not won a majority of the popular vote.

The Republican majority in the senate delayed one vote on a nomination and then rushed through another, with no regard to political consistency.

From a liberal and progressive perspective, these grievances are well-made.

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But.

From a constitutionalist perspective, there was nothing unconstitutional in a (Republican) president nominating new justices and a (Republican) senate deciding when to have the votes.

Both the delayed vote and the rushed confirmation were politically distasteful and discrediting.

But they were not unconstitutional.

Conservatives, however, should not take too much heart from this – as there is also nothing inherently unconstitutional about a president seeking to add justices.

This is because the constitution (though not federal legislation) is silent on the maximum number of supreme court justices.

If the Republican shenanigans about the appointment of supreme court justices was within the scope of the constitution, so may be any attempt to add new justices.

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A more fundamental question is about the role of the supreme court.

On the issue of abortion, for example, liberals and progressives have long depended on supreme court jurisprudence, especially Roe v Wade.

Yet it would be better and more sustainable to have fundamental rights sets out in legislation, rather than on the fragile basis of supreme court decisions.

A conservative majority on the supreme court is only as illiberal as the questions that will come before it.

If liberal and progressive policies are promoted and implemented by the route of legislation rather than litigation, then a conservative majority on the supreme court is less of a concern.

Liberal and progressive policies are always better secured by means of legislation rather than by court rulings.

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