A speaker tells a crowd in Trafalgar Square that doctors and nurses should be ‘hung’.
*
We are shocked and saddened to report some of our volunteer crew were verbally assaulted due to their role when reporting for duty tonight. This behaviour will not be tolerated. Thank you @metpoliceuk for your support.
Doctors and nurses and lifeboat crews are perhaps the last individuals that would be insulted and threatened in a decent modern society.
Without any of the mirth of the Withnail and I film, we can echo the sentiment that our country is drifting (ever further) into area of the unwell.
*
Those who defend such abuse may seek to say that it is only ‘freedom of speech’.
But no society has absolute free speech.
An immediate verbal threat of harm is not a protected speech act – just as forging a cheque or planning a robbery are not protected speech acts.
And dealing with threats to inflict hurt on other humans is what the law has, in part, always been about.
But to say a thing is against the law is not the same as saying the law would be effective in prohibiting such abuse.
Indeed, the laws as they stand would cover such utterances – and the law has not deterred the threats from being made.
And even if individuals were arrested and convicted, there is no reason to believe the nastiness of the culture wars would abate.
The ultimate issue here is not a public order problem with a neat legal solution.
The issue is cultural and political and social – and so only looking to the law would be an error.
There is a need for cultural and political and social leadership: for arguments to be won, and for behaviours to be discredited.
Laws and law enforcement will be part of that, of course, but they are not a complete answer, or close to it.
Once we are deep inside the arena of the unwell, there is no set of law suits or prosecutions with which we can bound free.
Those who threaten doctors and nurses and lifeboat crews should be prosecuted fully and fearlessly.
But such prosecutions would not make the problem go away.
Something deeper and more disturbing is afoot.
Brace, brace.
**
Thank you for reading.
Please support this liberal constitutionalist blog – and please do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
The great theatre critic Kenneth Tynan said somewhere that any good theatre critic can describe what the the theatre of their day was doing – the challenge was to explain what the theatre of their day was not doing but could be doing, and why.
This is the same challenge for all commentators, including those of us who seek to explain what is happening – and not happening – with law and policy.
And, as this blog described yesterday, there one thing that is not happening is the government not making a full frontal attack on judicial review in the new courts bill published yesterday.
It is always weird when nothing happens when something is expected to happen.
*
“Without venturing for Scrooge quite as hardily as this, I don’t mind calling on you to believe that he was ready for a good broad field of strange appearances, and that nothing between a baby and rhinoceros would have astonished him very much.
‘Now, being prepared for almost anything, he was not by any means prepared for nothing; and, consequently, when the Bell struck One, and no shape appeared, he was taken with a violent fit of trembling.’
– from A Christmas Carol by Charles Dickens
*
Law and policy commentators were yesterday expectant of a rhinoceros, if not a baby.
So what was finally published – a mild piece of legislation – has given us a fit of trembling.
What have we missed?
And what can explain what happened?
*
So far there are three broad theories.
The first is that this is a political false flag.
That the government has an illiberal plan – but for some reason is misdirecting us with this bill.
And indeed, as the eminent admiralty law jurist Gial Ackbar once averred, some things can be a trap.
*
*
Could the ministry of justice really be planning to introduce a raft of amendments late in the passage of the bill, so as to force illiberal measures through?
One would hope not – and one expects ministry of justice officials and lawyers to have more dignity than their home office counterparts.
And – in general terms – bills often start off more contentious than they end, so it would be unusual for such a game of constitutional bait and switch.
That said, one should not let one’s laser field down: this government will seek to be illiberal if it can get away with it.
*
If it is not a trap, there are two other possible broad explanations.
One is that put forward by this blog yesterday – which I will call the DAG theory, if only to distinguish me from Ackbar.
This theory is government-facing – and goes to the notion that there is (or was) actually a problem of judicial activism being a myth.
I first put this argument forward in my Prospect column last year, where I set out why there was a discrepancy between the (supposed) fears of the government (and its political and media supporters) and the reality of mundane administrative law decisions.
It would thereby not be a surprise that when the government came to actually legislate – rather than speechify – there was no real problem to solve with primary legislation.
The government had walked up a stair and passed a problem that was not there, and the problem was not there either yesterday, and indeed it had gone away.
If so, this is a similar to previous situations, where the government has sought to ‘reform’ the human rights act or to deal with ‘compensation culture’.
It is always difficult to make laws against turnip-ghosts.
*
But there is a third theory, which you may find more plausible than either Ackbar’s or my own.
And that was put forward on Twitter by Alexander Horne.
Instead of my government-facing explanation, Horne argues that it is the policy of the courts that has changed.
And that because there is now no problem of judicial activism, it follows there is no need for a solution.
Isn’t the answer here that the Government has changed the direction of travel of the Supreme Court, without the need for legislation. The recent judgment from Lord Reed in the child benefit cap case shows a distinct change of tone from what you saw from the Hale led bench…
If the court has retreated from that approach then what incentive is there for the Government to introduce draconian reforms? As it is, I note that the Bill would still reverse the Cart judgment & allow for the limitation or removal of the retrospective effect of quashing orders
There is certainly a shift in the supreme court under the new president Lord Reed – and Reed is, as this blog set out in a previous post, a judge who can write that judges should give the assessments of the home secretary more respect with a straight face.
*
Where Horne and I agree is that there is currently no problem of judicial activism that needs solving – the difference between us is that I aver it was a turnip-ghost all along.
Whichever theory is correct – Ackbar, DAG or Horne – there will be some commentators and campaigners who will contend that even the two proposed reforms are too much, and that they must be opposed loudly and brashly, and deploying the language of constitutional conflict.
But a good advocate knows that one should choose one’s battles.
The government’s proposals should still have the benefit of anxious scrutiny – just in case Ackbar is correct.
But one should be wary that the language of fundamental opposition to the government be devalued, for if is wasted here then it will have less purchase when it is needed.
*
A final word to the Judicial Power Project – a group with the strange view that the primary problem in the United Kingdom constitutional is judicial power and not the lack of checks and balances on either the executive or the legislature.
Interesting to note that the MoJ press release chose to highlight this somewhat lukewarm endorsement from Ekins, of the Judicial Power Project (sometimes referred to as the Executive Power Project). pic.twitter.com/iFgbaEIhJy
— George Peretz KC 🇺🇦 (@GeorgePeretzKC) July 21, 2021
It would appear that the Judicial Power Project are underwhelmed with the reforms they have so long campaigned for.
You would need a heart of stone not to laugh.
**
Thank you for reading.
Please support this liberal constitutionalist blog – and please do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
I was going to use today’s post to criticise the United Kingdom government’s assault on judicial review in the Judicial Review and Courts Bill published today.
The bill only seems to have two provisions in respect of judicial review – neither of which are exceptional nor objectionable.
One deals with a particular issue in respect of immigration judicial reviews, the other in making an additional remedy available to judges.
The latter has the strange quality in a government proposal of actually being a good idea.
*
For a sense check I looked at the comments of other legal commentators (I always try to form my own view on legal instruments and judgments before seeing what else others have said).
But they too saw the proposals as mild and uncontroversial.
Lord Anderson QC, an independent peer:
The JR Bill will need hawk-like scrutiny, but this call to the faithful suggests it may be less damaging than feared. Cart JRs will end but no mention of ouster clauses. And an express and unfettered judicial power to suspend quashing orders would be OK. https://t.co/qVJn53IkyX
Lord Pannick QC, via my near namesake the president of the law society:
David Pannick suggests this should be a time for celebration because the proposals on JR are so limited. Celebration? @JoshuaRozenberg or is the template simply being set for widespread ouster provisions that the LC proffers will work. https://t.co/8llJzqK7Pn
These reforms have just been welcomed by Lord Pannick QC. He thinks the Judicial Power Project will be disappointed by the paucity of the proposals on judicial review, compared with the consultation paper. https://t.co/KtRk2AUHjA
We can be quite sure that the (laughably) named Judicial Power Project – a group with the strange view that the primary problem in the constitution of the United Kingdom is unchecked judicial rather than unchecked executive or legislative power – will be disappointed.
And there is a serious question to be asked about whether the government will seek to introduce amendments during the passage of the bill – though the usual trajectory is for bills to start off illiberal and to become less so during their legislative passage.
There is also the detail about fettering judges’ discretion in respect of the new quashing orders.
But all this said: this is a significant (and welcome) law and policy anti-climax.
This government went from boasting and blustering about fundamental judicial review reform – with a wide-ranging consultation – to, well, this.
Front covers of right-wing magazines carried caricatures of stern out-of-touch judges, while the tabloids called them ‘enemies of the people’.
Perhaps there was never really any problem to begin with – other than in the extreme political imaginations of the government’s political and media supporters.
**
Thank you for reading.
Please support this liberal constitutionalist blog – and please do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Take a moment to listen to this question to the prime minister from the Sky political editor Beth Rigby – and hold on to hear her follow-up.
Sky's @BethRigby asks Boris Johnson if he and his ministers have 'stoked division' and questions if his 'own record undermines his image as a unifier'.
As a question from a political journalist to a prime minister, the question could not be bettered – in form, content, or delivery.
Superb – but not exceptional.
The fact is that there are some outstanding journalists – in the United Kingdom and the United States – capable of asking excellent questions.
In the United States even before the election of Donald Trump as president in 2016, many of his material and manifest lies, faults and failures were already in the public domain – thanks in part to diligent investigative journalism.
But it did not matter.
A sufficient number of voters clapped and cheered for Trump anyway for him to win the electoral college, if not the popular vote.
Similarly, sufficient number of voters clapped and cheered for Boris Johnson and his governing party to win the general election in 2019, if not the popular vote.
And Johnson’s material and manifest lies, faults and failures were also in the public domain.
It did not matter.
It is a public good – that is a good that does not need any further justification – that journalists as brilliant as Rigby and others ask these questions.
The speech was a policy speech – not a political speech to a party conference or a rally.
The speech was also a formal speech as prime minister, with the text formally published on the government’s official website.
And it was perhaps the worst formal policy speech ever given by a prime minister.
Look at the state of this:
Here is just one sentence:
There are prisoners in Belmarsh with shorter sentences.
The speech is gibberish, for sentence-after-sentence and paragraph-after-paragraph.
And even if you want to give the benefit of the doubt – as not even lawyers and legal commentators speak as precisely as they write – this is not an unofficial transcript but the version approved for formal publication on the official government website.
And regardless of form, there is not a single concrete policy proposal in the speech.
Just words, words, words.
How does he get away with it?
*
We have a juxtaposition, a tension – if not a contradiction – in our political and media affairs, and it has implications for all policy-making and law-making.
We may well have first-rate media questions – but we also have low-level political accountability.
Why?
Because politicians with executive power – at least in the United Kingdom – rarely have to be publicly accountable when it can really matter.
A prime minister can brush off a journalist’s question.
A prime minister can brush off the leader of the opposition.
A prime minister with a majority, and ministers generally, are not publicly accountable to anything in any meaningful way for their policy-making and law-making.
Even general elections are not a real check or a balance – as the government reneging on manifesto commitments show.
There is, of course, political accountability to their own back-benchers – but that is rarely in respect of specific policies or laws, and that accountability is informal and often hidden in private meetings and communications.
That is not public accountability.
And so we have the concurrent spectacle of the best of questions and the worst of speeches, and there is little or nothing anybody can do to make the situation any different.
**
Thank you for reading.
Please support this liberal constitutionalist blog – and please do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Yesterday there was this stunning tweet from Lord Falconer, the experienced QC and a former lord chancellor – and now a Labour spokesperson.
The government today just amended an absolute duty on it contained in an Act of Parliament by a motion in the Commons. They did not amend the Act. They simply used their Commons majority to override the law.
There is nothing positive to say about this illiberal and misconceived decision, and it should be opposed by every sensible person.
But what Falconer said appears incorrect – either in the head tweet or taking the thread as a whole.
*
The correct position, as has been previously set out on this blog, is that the obligation under the International Development (Official Development Assistance Target) Act 2015 is not an absolute obligation.
The act provides for a statutory target of 0.7% of gross national income is sent on overseas aid – but this has no legal force and is certainly not absolute.
“It is the duty of the Secretary of State to ensure that the target for official development assistance (referred to in this Act as “ODA”) to amount to 0.7% of gross national income (in this Act referred to as “the 0.7% target”) is met by the United Kingdom in the year 2015 and each subsequent calendar year.”
Section 1(1) is subject to wide wide exceptions in section 2(3):
“(a) economic circumstances and, in particular, any substantial change in gross national income;
(b) fiscal circumstances and, in particular, the likely impact of meeting the target on taxation, public spending and public borrowing;
(c) circumstances arising outside the United Kingdom.”
In view of these exceptions, the section 1 cannot be called ‘absolute’.
*
To take advantage of an exception, the government has to lay a statement before parliament.
And that is what the government did yesterday – the statement is here, and it states:
‘The government will continue to act compatibly with the International Development (Official Development Assistance Target) Act 2015, under which accountability is to Parliament. The Secretary of State will lay a statement in Parliament in accordance with section 2 of the Act in relation to each calendar year in which the government does not spend 0.7% GNI on ODA.’
*
The legal problem with the international aid cut is not directly with what the government did – for they have complied with the act.
The problem is with the sloppy drafting of the legislation, which makes the target obligation nothing more than a nice-to-have.
The public understanding of law is a valuable but fragile thing and such misleading comments undermine the public understanding of law.
The correct response to sloppy legislation is not sloppy commentary.
*
As a post script, even the section 2 exceptions do not really matter as section 3 explicitly robs the entire duty of any legal usefulness whatsoever:
“(1) The only means of securing accountability in relation to the duty in section 1 is that established by the provision in section 2 for the laying of a statement before Parliament.
(2) Accordingly, the fact that the duty in section 1 has not been, or will or may not be, complied with does not affect the lawfulness of anything done, or omitted to be done, by any person.”
What a useless piece of legislation.
**
Thank you for reading.
Please support this liberal constitutionalist blog – and please do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
One goes through a period of illiberalism – and the temptation is to project that into a dismal future of ever-increasing illiberalism.
And then: just as things seem to be inevitably getting worse, there is a swing back to liberalism.
There is a vice versa, of course: periods of self-congratulation and liberal complacency collapse into illiberalism.
Every 2012 London Olympics opening ceremony is not long followed by a Brexit vote.
The difficult – if not impossible – thing is to know the difference.
Are things getting better, or are they going to get worse?
The inclusive solidarity as signified by the current England football team, as complemented by the defeat of the governing party in recent by-elections, could mean that the illiberal tide has stopped advancing.
Hurrah!
Ot it could be a cause for false hopes.
Boo!
One day, historians will posit that whatever does happen next as having been inevitable all along – even though those of us here at the time can only see a range of possibilities.
But as the government keeps pushing forward with illiberal bills – policing, immigration, whatever – and infantile ministers play with the fires of culture war, there are still hopeful signs that the nastiness has not yet fully prevailed.
And, although politics may be cyclical, a great deal is still down to human agency.
The illiberals can be defeated again – and whether they are defeated or not may come down to political actions by liberals now.
There is a tendency sometimes for people to wrongly think things are all over, when there are still goals to be scored.
**
Please support this liberal constitutionalist blog – and please do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Sixty years ago, a Labour politician disclaimed a peerage – a viscountcy, no less – so as to sit in the house of commons.
That politician, of course, was Tony Benn who had become Viscount Stansgate on the death of his father.
He won the relevant by-election.
And now, in the early 2020s, we have this by-election:
Viscount Stansgate has been declared elected unopposed in the House of Lords by-election for a Labour hereditary peer that was due to take place next week: https://t.co/DBUSjIzQoX
The viscountcy survived and was claimed by Benn’s son, who is now a legislator in our parliament.
Thus is because there are still hereditary peers in the House of Lords – and, somewhat bizarrely, they are elected by other hereditary peers according to party quotas.
They are the only members of that chamber who are there by winning an election – or by not being opposed in one.
*
There are many good reasons to have the house of lords as a check and a balance on the house of commons.
And the quality of the debates and of the amendments makes it difficult for anyone to make a practical (rather than principled) objection.
But that members of the house of lords – capable of initiating and amending legislation – can be there by the hereditary route is not capable of any sensible principled or practical defence.
It is preposterous.
It is 2021 – and even in 1911 it was intended that the hereditary presence in the upper chamber was to be temporary, as you can read in this preamble:
Immediate?
Like the presence of Anglican bishops also in that chamber – even though they are from the ‘established’ church of only one of the four home nations – the presence of hereditary peers is something which can and should be ended easily and, well, immediately.
That is, if anyone in front-line politics was genuinely interested in constitutional reform.
For in sixty years, with governments of all parties, all we have managed is to go from one Labour politician becoming a member of parliament by not being a viscount to another one, in effect, becoming a parliamentarian just because he is one.
**
Please support this blog – and please do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
The myth of the libertarianism of Boris Johnson, the prime minister of the United Kingdom, endures.
ANALYSIS: Libertarian Johnson follows instinct in a big bang unlock. He had promised a ‘cautious but irreversible’ route out of lockdown, but with Delta variant now spreading uncontrollably, he’s taking a big gamblehttps://t.co/vo37ZcvoAi
By ‘myth’ I mean that it is a thing that has narrative force, and which some people believe to be true, but it is a thing that is ultimately false.
Johnson is, of course, a political libertine, in that he believes rules – and indeed laws – are for other people.
His government attacks the independent judiciary, the impartial civil service and diplomatic corps and the public service broadcaster, as well as disregarding the speaker of the house of commons, the electoral commission, the ministerial adviser on the civil service code, the panel on appointments to the house of lords, and so on.
And so on.
If his government can get away with weakening or eliminating a check or balance, it shall do so.
It will not be told by anyone what to do.
The politics of Kevin the Teenager.
And this defiance is no doubt the basis of the decision of the government to relax the lockdown, despite various warnings.
Members of the government, and their political supporters, are fed up with being told what to do – especially as the impositions are for the benefit of others.
But.
Is this restless defiance ‘libertarianism’?
Is there a coherent vision of limiting the power of the state vis-a-vis the individual?
This is a government which is seeking to disenfranchise people:
Today the Government is presenting the Electoral Integrity Bill to the House. This Bill will contain provisions for Voter ID. Voter ID will potentially disenfranchise thousands of people. It is an illogical and illiberal solution to a non-existent problem
There is also, of course, the similar myth of the prime minister’s liberalism – that he, like Donald Trump, is really at heart just a metropolitan liberal.
Yet many in his cabinet – Priti Patel, Oliver Dowden, Robert Jenrick, Elizabeth Truss – merrily play with the fires of culture wars and the politics of social division and confrontation, rather than promoting the politics of inclusion and solidarity.
The prime minister does not mind or care.
By any serious definition of libertarianism and liberalism this government is neither libertarian nor liberal.
There is no general approach to limiting those with state power to the benefit of those who are affected by state power.
Instead we have a government with occasional twitches and jolts against state power while over time accumulating as much power as possible for the executive and dismantling or dismissing any entity capable of saying ‘no’.
The general approach of this government is authoritarian – though this authoritarianism can be set aside when the power of the state would be for the benefit of others.
There are many words for the general approach of the prime minister and his government, but ‘libertarian’ is not one of them.
**
Please support this blog – and please do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
In today’s Sunday Telegraph there is a short, 750-word opinion piece by Vernon Bogdanor, the eminent professor of government.
*
Previously I have criticised Bogdanor for not appreciating the constitutional significance of the Good Friday Agreement – see here and here – to which he responded here.
My view is that he has a vision of the constitution that holds that the position before the Good Friday Agreement is the norm from which politics and law have since deviated.
If you look at that exchange, you can form your own opinion on the merit or otherwise of my view.
*
Bogdanor’s latest opinion piece is about the Northern Irish high court decision last week in respect of the challenge by unionists of the Northern Irish protocol – a case which this blog touched upon here.
The judgment is some 68-pages but is readable and is worth reading.
Bogdanor spends the first part of his article setting out a general account of the submissions made by the applicants and he then briefly summarises the court’s decision.
His summaries are not the ones that I would write – but they are unexceptional even if not balanced.
And then.
The article takes a turn.
We get to the final three paragraphs, and something happens.
Let’s take these paragraphs in order – and sentence-by-sentence.
*
‘The uncodified British constitution allows Parliament to decide that Northern Ireland should be subject to different goods regulations and trading rules from the rest of the UK.’
The second part of that sentence is generally correct – though it is hardly the fault of our uncodified constitution.
Such a decision could easily have taken place under a codified constitution.
It was, of course, a decision for which the government had a mandate in the December 2019 general election as part of the ‘oven-ready deal’.
*
‘But Unionists hold a different view of the constitution.
‘They hold that loyalty to Westminster is not unconditional, but dependent upon respect for the Union.’
This is a rather significant thing to say – and it contends that the legitimacy of the United Kingdom state is ultimately contractual – even transactional – as that loyalty is dependent on ‘respect’.
The implication of this would appear to be that if the United Kingdom state is in breach of this contract then the unionists no longer should abide by the law of parliament.
*
‘That is why in 1974, a power workers strike by Unionists brought down the Sunningdale Agreement, which had provided for a cross-border Council for Ireland giving the Republic what Unionists believed was excessive influence over Northern Ireland.
Is Bogdanor suggesting there could, as a matter of fact, be similar civil disobedience now?
Or is Bogdanor even averring that such civil disobedience would be justified under our uncodified constitution?
It is not easy to tell.
*
‘The Unionists are Queen’s rebels.’
I am not sure what Bogdanor means by this.
*
‘Where then stands the Protocol?
‘The EU Commission has agreed to the Government’s request to extend the grace period for chilled meat for three months.
‘But that merely kicks the can down the road.
‘In any case, the argument is not about sausages but about whether Northern Ireland is to be cut off from the rest of the UK.’
Here we perhaps go from the salami to the ridiculous.
The dispute is, of course, more than about sausages – but to escalate it to it being about the very union does not necessarily follow.
There are a range of resolutions to this dispute – either through the mechanisms of protocol or by amending it – all of which are consistent with the continued existence of the union.
*
‘The court in Belfast is, however, right to this extent.
‘The question of whether the Protocol is constitutional is one not for the courts but for politicians.’
Here the contentions of the opinion piece appear to become confused.
A couple of sentences ago, Bogdaonor was saying that there could (and even perhaps should) be civil disobedience.
Civil disobedience means direct action outwith the processes of political institutions – that is out of the hands of politicians and the formal political process.
Unless, of course, what he means by ‘politicians’ are the leaders of the envisaged civil disobedience.
*
‘The case for the Unionists is based on the Enlightenment principle of consent of the governed.’
Is this proposition correct?
The basis of unionism is the positive belief in membership of the United Kingdom, a belief that would still have force even if (or when) it becomes a minority view in Northern Ireland.
If (or when) that does come to pass, would a united Ireland (as endorsed in a border poll) be an imposition on the unionists?
*
‘Sadly, the Unionists of Northern Ireland, together with Kurds and Israelis, are deemed not to be entitled to the benefits of this principle by progressive theologians.’
No, I am not sure what this means either.
*
‘But it is, nevertheless, a principle which should be enthusiastically championed by the Conservative and Unionist party of the United Kingdom.’
This is the last sentence of the article, and its import is unclear.
The Conservative Party is currently the governing party of the United Kingdom and it stood on an explicit manifesto commitment to get Brexit done by means of the withdrawal agreement – which contained the Northern Irish protocol.
For them to now switch would mean negating a manifesto commitment on which they won an emphatic victory in a general election dominated by the issue of Brexit – a general election that treated the whole of the United Kingdom as a single political unit.
This treatment of the United Kingdom as a single political unit was also, of course, adopted at the time of the 2016 referendum, where a majority the voters of Northern Ireland (like Scotland) voted to stay in the European Union.
Presumably the decision of the parliament of the United Kingdom to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland was also a breach of some enlightenment principle or other.
And when the Conservative Party do not ‘enthusiastically champion’ what Bogdanor wants them to champion, what then?
*
Another constitutional principle – also in part from the Enlightenment, as it happens – is that of the rule of law.
The ‘rule of law’ is not mentioned in Bogdanor’s 750-word piece, which still found room for mention of both the ‘Queen’s rebels’ and ‘progressive theologians’, and is a shorter phrase than either.
The contention that unionist loyalty is ultimately conditional despite the law of parliament is reminiscent of “there are things stronger than parliamentary majorities” – a phrase with an unfortunate history in the context of Ireland.
4. Andrew Bonar Law, the pugnacious Conservative leader, told a demonstration: "there are things stronger than parliamentary majorities". He almost certainly helped supply weapons to the Ulster Volunteers: a paramilitary army dedicated to armed resistance aginst an Act of Parlt. pic.twitter.com/TfEwmvjGdz
A general strike – such as in 1974 – was not the only way that unionists in Northern Ireland have taken it upon themselves to prevent a perceived breach of the perceived contract between the government and the governed.
*
To the extent that Bogdanor is warning in a positive way that peace and stability in Northern Ireland requires sincere and proper regard to the unionists then no sensible person can gainsay him.
But to the extent (if any) that Bogdanor is contending that the uncodified constitution and the principle of the consent of the governed justify a resort to resistance and rebellion (queenly or otherwise, and unarmed or otherwise) and discard for the rule of law then I fear he has fallen into error.
Bogdanor is right to say that political questions should be dealt with politically and not by the courts, but such questions also should be dealt with in accordance with the law.
**
Please support this blog – and please do not assume it can keep going without your support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Over on Twitter, the educationalist and head teacher Katharine Birbalsingh set out in a thread her thinking about school rules.
So as to reduce the scope for any misrepresentation, here is the thread in full:
Why are school rules good?
Because as society has laws, schools need order.
Otherwise bullying/harassment. Lord of the Rings.
Parents want lovely schools but you won’t get them without rules or intense selection.
And yes, your kid needs to follow the rules too 1/6 THREAD👇🏼
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
But we don’t enforce silence or sitting up straight in society, so why in schools?
Our prisons are packed. We remove permanently those who won’t obey laws.
Schools can’t/won’t do that for most part.
They need a way to ensure a culture of order or the weakest get trampled 3/6
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
While more funding is always nice and some teachers aren’t up to the job, the main thing that makes a school good or bad is its CULTURE.
And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.
Unless you have a selective intake. 5/6
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
It is like teaching a toddler to say thank you or please.
‘You don’t get the chocolate until you say thank you.’
That’s a rule most parents teach and insist on over years until the habit is embedded.
It is the same for sitting up straight or not hollering in corridors. 6/6
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
*
My immediate response to this earnest exposition was to tweet that it was priceless that a thread about academic standards started off by confusing Lord of the Flies with Lord of the Rings.
This was what would have been called in the days of the school standards urged, a ‘howler’.
And this howler prompted treasured memories of Alan Partridge’s Hot Topic:
*
Caller: ‘Well I enjoyed the Hobbit more than “Riverdance”. And I think that lots of boys on an island killing a fat boy is not so enjoyable as Gandalf, with a long white beard.’
Alan Partridge: ‘Okay, if you’ve just joined us, we’re talking about who is the best lord. “Lord of the Rings”, “of the Dance” or “of the Flies”. That’s tonight’s “hot topic”.’
*
Katharine Birbalsingh was not amused:
Your rudeness and pettiness is also priceless although more disappointing. Mine was a slip. Yours was not.
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
And so, as a courtesy, and with my immediate point having been made, I deleted my tweet.
*
But as a further recompense for my irksome tweet, I thought I should set out some thoughts about ‘rules’ – in schools and elsewhere.
After all, this is a blog about law and policy – and laws are rules, and education policy is a policy.
*
One important quality that rules should have is, as Katharine Birbalsingh avers, consistency.
But there are other important qualities.
Another important quality of rules is credibility.
If a rule seems daft – indeed absurd – then it will be difficult for the individuals affected to take the rule seriously.
And if a rule is not taken seriously, people will tend not to comply with the rule, and those charged with enforcing the rule will tend to avoid enforcing it.
So, for example:
‘But we don’t enforce silence or sitting up straight in society, so why in schools?’.
The reason why those rules would not be enforced in society is because they would be daft rules, and they would be derided.
There are enough problems in getting people to comply with the legal rules that do exist:
‘Our prisons are packed.’
*
Another important quality of rules is that they are proportionate and just – both in their nature and in their enforcement.
But a problem with strict rules – especially those with onerous sanctions – is that there can be no restraint on those enforcing the rules.
The enforcers become the bullies.
Power tends to corrupt, as some old liberal once said, and absolute power corrupts absolutely.
And so we come to the crux of Katharine Birbalsingh’s argument:
‘…the main thing that makes a school good or bad is its CULTURE. And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.’
[Block capitals in the original.]
One way of thinking about this proposition is to replace the word ‘school’ with the word ‘society’:
‘…the main thing that makes a society good or bad is its CULTURE. And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.’
In this recasting, you have what is the essence of illiberal totalitarianism.
Your rights are restricted, but it is only for your own good, and to protect you from the Other.
Given that the thread jumps from points about schools to those about society, it is not (I hope) unfair to set out this transposition, and its implications.
Back in the context of a school (or indeed any particular institution within society), the imposition and enforcement of strict rules can be the means by which the few (those who impose and enforce rules) can indeed ‘ruin it for the many’ (those who have to comply with those rules – or else).
Strictness as an end in and of itself can be as much a means of bullying of the ‘many’ as what the strictness purports to address.
*
Now we come to the hobgoblins on the beach.
The schoolchildren in Lord of the Flies.
These are the horrors – the marooned turnip-ghosts – from which we need to protect our children.
If adults do not step in, it will go all Lord of the Flies.
https://www.youtube.com/watch?v=3jFqhjaGh30
*
A good response to Katharine Birbalsingh’s point here is this tweet:
Slip aside, does it not strike you that your point is undermined by the fact that the children in Lord of the Flies had attended schools with strict discipline?
— (no offence to Imagine Dragons, who suck) (@country_jim) July 3, 2021
*
Lord of the Flies is one of those books about which anyone who knows of it will have an opinion about it.
And often that opinion will have been formed (or imposed) at school when it was a set text.
There is, of course, not one ultimately correct view of any literary text.
(This is where literature perhaps differs from law, where the conceit is that each legal text has an ultimate correct meaning – ho ho.)
In her thread, Katharine Birbalsingh was positing (or was intending to posit) the island in Lord of the Flies as the world of lawlessness – the anarchy, the chaos that every small-c conservative fears:
‘Because as society has laws, schools need order. Otherwise bullying/harassment. Lord of the [Flies].’
Of course, one of the places in our society which are nearest to the anti-ideal of this lawlessness, where bullying and harassment are rife are, well, prisons:
‘Our prisons are packed. We remove permanently those who won’t obey laws.’
And, other than a few dozen full-life sentence prisoners, the intention is that all convicts – over 80,000 of them – are to return to society after this experience of bullying and harassment.
*
The counter-argument to Katharine Birbalsingh’s thread is that the imposition and enforcement of strict rules as an end in themselves can become a means of the ‘bullying and harassment’ that she claims to want to avoid.
Or the rules may become discredited and thereby pointless.
The important qualities for any body of rules are consistency (on which she is right) but also credibility and proportionality.
Otherwise the rules become part of the problem, and not part of the solution.
Rules are crucial – and as a law and policy commentator, I would say that wouldn’t I, else I would have nothing to commentate on – but their strictness is not an important quality.
Credibility and fairness are far more important than strictness.
Rules are an essential means of moderating power relationships – and they prevent those with power from injuring or exploiting those without power.
The principle of the rule of law means that legal rules bind the mighty as well as the weak.
And so to function properly rules need to have legitimacy, and not just firmness.
For, when rules lose their legitimacy…
…it all goes a bit Lord of the Flies:
‘“We’ll have rules!” [Jack] cried excitedly. “Lots of rules! Then when anyone breaks ’em–”
[…]
‘Jack was the first to make himself heard. He had not got the conch and thus spoke against the rules; but nobody minded.
[…]
‘“The rules!” shouted Ralph.
‘“You’re breaking the rules!”
‘“Who cares?”’
Who indeed.
**
Thank you for reading and you are invited to support this liberal constitutionalist law and policy blog – and please do not assume it can keep going without support.
If you do value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above (any amount), or become a Patreon subscriber.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
