Category: Legislation and Law-Making

The ‘c’ word – why ‘corruption’ is the accurate word for describing what the United Kingdom government is doing

16th November 2021

Corruption is more a political than a legal term – at least in the law of the United Kingdom.

For instance: there are no current Acts of Parliament with corruption in their title:

In criminal law there is no particular offence of corruption – but instead offences in respect of bribery and misconduct in public office.

Neither of these offences equate with corruption.

Bribery is too narrow – for taking and giving bribes is only a subset of corruption.

And misconduct in public office is too wide – for this umbrella term can cover official misbehaviour that is not necessarily corrupt.

In everyday legal practice the word corruption is now often lumped in with anti-bribery – with the acronym ABC being used to discuss any policies and laws that deal with such wrongful behaviour.

So to talk of corruption, at least in the United Kingdom, is not to speak of anything legally specific.

The word is about politics, not law.

So if you think term corruption should be used to describe the current government of the United Kingdom then it is because it is a better political (than legal) fit than any other term.

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The other common term on offer is sleaze.

This word is widely used perhaps for two reasons.

The first is because it was once an effective word.

As anyone who can remember the 1990s will know, this term once had considerable media and political purchase.

The word sleaze dominated and perhaps changed British politics.

And so perhaps those using the term are hoping that using the word similarly catches the worlds of media and politics alight again.

An attempt to re-live the 1990s.

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“I’m a firestarter, twisted firestarter.”

The Prodigy, 1996

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The second reason for the avoidance of the ‘c’ word is far less commendable.

It is the notion that corruption is what other nations do – and so the avoidance of the word is an example of British exceptionalism.

Here I recommend the @gathara account by Patrick Gathara and his long-running threads that frame the politics of the United Kingdom, Europe and America in the same (condescending) terms that the politics of Africa are often framed by those in the United Kingdom, Europe and America.

The threads make for uncomfortable and telling reading.

(I have seen these threads described as parody, but the thing is that they are not really parody, and perhaps the opposite, for this is exactly the style in which the media and politicians of United Kingdom, Europe and America routinely frame African affairs – it is a house style, not satire.)

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Corruption, as a word, means debasement.

Think of a corrupted program.

This is more than intended dishonesty – for things can be debased for various reasons.

The general and sustained assault by the British government on a range of institutions and bodies that provide checks and balances is an exercise in debasement.

There is no better word than corruption for what this government is doing to our polity.

For instance: the ultimate problem with the Owen Paterson affair was not so much the paid advocacy – for that had been identified, investigated and decided upon by the relevant committee, and so the system was ‘working’ – but the blatant attempt by the government to use its power to attack the committee and the system generally.

That was the real debasement.

The state of the United Kingdom is being corrupted.

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Politicians and the media use the words and phrases which they perceive as working in their interests.

And politicians and the media currently see the word sleazy as being expedient.

But they also, it seems, see the word corruption as not being advantageous.

Why would that be?

Perhaps is because to use that ‘c’ word would mean that we finally accept that British exceptionalism is a sham.

For the United Kingdom is a corrupted state too.

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Solving the problem of the House of Lords

13th November 2021

Over at the Financial Times, there is an interesting and informative piece about the hereditary peers in the house of lords.

And the point of the article is compelling: they make no sense.

The hereditary peers, as with the bishops of the established church of just one(!) of the four home nations, have no place in the legislature.

The only possible plausible argument for their presence is that, at least, there are members of that chamber that do not own their place to patronage.

But that is not much of an argument.

The biggest problem about the house of lords is not so much that of personnel but of function.

And unless we work out the proper function of the upper chamber then there can be no consensus on how to replace the hereditary peers and English Anglican bishops and on how to reform the house more generally.

What is the house of lords for?

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Some may aver that the chamber should have a representative function – perhaps of the home nations or the regions.

(This like the old notion that the house of lords was there to represent the agricultural/landed interests and church interests so as to balance the interests of those represented in the commons.)

Or its membership at least based on being elected by some different configuration than the house of commons.

Like the senate in the United States having two senators per state as opposed to the variable number of representatives per state in the other house of congress.

But this view raises the potential problem of rival mandates, with both houses claiming the legitimacy of the electorate.

In the United States that problem is avoided in part because of tradition, but also because the two houses have some different functions and are elected on separate cycles.

Such a balance would not be easy, at a stroke, to transplant into the United kingdom.

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Far more important than any representative function is, in my view, to retain and improve the revising and scrutiny role.

Here the house of lords, despite its lack of democratic legitimacy, serves the public interest in legislation often being better than it otherwise would be.

Placing the house of lords on some sort of democratic basis would risk losing this valuable role.

But other than through the patronage of the prime minister and others, how should members of this upper house be appointed?

On one hand they need to have the experience, ability and independence to say ‘no’ to a government so as to force reconsideration (though not to veto completely).

On the other hand, they need to have some legitimacy in a democratic society, and so whoever appoints them must have some direct relationship with the electorate.

Indeed, it may even be that there cannot be any reform of the house of lords until there is prior reform of the over-mighty house of commons.

And that in turn may need electoral reform and so on in an almost innate political regression.

Where would you start?

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So, back to the immediate question: how do we solve the problem of the house of lords?

There is no obvious solution – at least not one that does not risk losing what is valuable about a revising and scrutinising upper chamber.

And an unchecked house of commons is not an attractive prospect.

Like the crown, the constitutional significance of the house of lords may be not so much what powers it does have, but what powers it prevents others from having.

Getting rid of the hereditary peers and the bishops – although welcome – leaves the more general issue of what the house of lords is for unsolved.

Perhaps there is no practical and immediate solution.

And that is why in 2021 – 110 years after the temporary retention of peers in the 1911 Parliament Act – we still have this odd system.

(Emphasis added.)

Perhaps in another 110 years we will have a solution.

Or perhaps not.

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Do we really want lawyer-politicians?

10th November 2021

Today is the first year anniversary of this daily blog.

Woo hoo.

Every single day since 10 November 2020 there has been a post on this site: some long, some short, some ignored, and some which have been very popular indeed.

There have been 1.5 million(!) hits on this blog in the last twelve months.

Thank you to everyone who reads and promotes the posts – and a particular thank you to those whose kind donations make it possible for me to justify the opportunity cost and time to keep this daily blog going on a free basis for everyone.

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So today let us look at a story at the heart of law and policy and politics: lawyer-politicians.

The story of Geoffrey Cox is in the news – and over at Joshua Rozenberg’s blog, there is a sterling defence of Cox.

And if you want a sterling defence of Cox then there is where you should go.

This post is instead a half-hearted and implicit defence of Cox.

It is however a defence of having lawyer-politicians, arguing from general principle rather than unattractive facts of this particular case.

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Do we want lawyer-politicians?

By this I mean, members of either house of parliament who are also practicing lawyers.

In the current (unreformed) house of lords, there is no doubt that there is immense benefit from having cross-benchers who are practising lawyers such as Davids Pannick and Anderson, as well as retired law lords who may also be earning fees as arbitrators or mediators.

And if that is to the benefit of the house of lords then it is difficult to argue from principle that it would also not be a benefit to the commons – even if the quality of the lawyers is less stellar.

The office of lord chancellor (which is also secretary of state for justice), and the jobs of the law officers (attorney-general and solicitor-general) all presuppose that there are competent lawyers in parliament to fill such posts (though the lord chancellorship can also be held by non-lawyers).

Practising lawyers can only be banished from the house of commons once there has been proper consideration of what would then happen with the role of law officers.

Maybe it is time to take these roles out of the hands of politicians; maybe not.

But that is a decision which would have to faced before we get rid of practising lawyers from the house of commons.

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It is a public good that there lawyer-politicians in parliament.

Law-makers make laws, and so a professional background for politicians in dealing with laws is thereby a public benefit.

It is also a public good that lawyer-politicians can be candid and semi-independent law officers telling the government unwelcome truths.

The problem with the current law officers is not that they are lawyers, but that they are unwilling to be robust in their special autonomous role.

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Law is one of the main ways of crafting public policy, and so the better laws we have the more public policy will benefit.

And the better the understanding of our legislators about how law works in practice, the better public policy will be generally.

We should therefore be glad there are lawyer-politicians in general, even if some examples are difficult to accept politically.

And if the objection to a particular lawyer-politician is political, then it should be a matter for politics how that particular case is dealt with.

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It could be argued that on election, any lawyer who becomes a member of parliament should cease practicing, and become a full-time politician.

They would still have the benefit fo their legal training and experience.

We would still have lawyers in parliament, they would just be former practising lawyers.

That is a good argument.

But my fear would be that this would limit the number of lawyers who become members of parliament – and already there may be too few for there to be competent law officers (and shadow law officers).

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All this said, however, there can be little sympathy for Cox.

Presumably he cannot even hide behind the cab-rank rule, as that famous rule that barristers must accept instructions does not apply to foreign work.

And voting in the commons from a tax haven, and (it seems) working in that tax haven from his commons office, is not the most impressive feat for a lawyer-politician in the great traditions of the Bar.

The argument about ‘experience’ does not wash either, as a Queens Counsel can be presumed to have valuable experiences in any of their client work.

So it is hard to make a positive case for Cox, and so I will not.

He is, however, saved by the general argument: that if we are to have lawyer-politicians then there will have to be the Cox apples in the barrel as well as those whose practices are less, ahem, glamorous.

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So I mark the first anniversary of this daily blog with a defence of lawyer-politicians generally (but with no explicit defence of Cox in particular).

Thank you again for reading, promoting and supporting this daily law and policy blog, and I will see how I can keep up going on this daily basis for another year.

******

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When this government does not like a rule which binds it, the government will do whatever it can to circumvent, frustrate, remove or simply disregard that rule

3rd November 2021

There is an extraordinary situation today in the house of commons.

Yes, yet another extraordinary situation – and although such situations are becoming commonplace, they should never be regarded as normal.

The government is instructing its backbenchers to vote down a suspension of a member of parliament who seriously breached lobbying rules.

The government is also seeking to re-write those rules.

As the deputy leader of the opposition rightly said at prime minister’s questions: “when they break the rules they just remake the rules”.

And this, of course, is part of a trend.

Here is one colleague at the Financial Times:

And another:

The overall trend is that if this government does not like a rule which (supposedly) binds it, the government will do whatever it can to circumvent, frustrate, remove or simply disregard that rule.

It is not so much ‘one rule for them, and another rule for us‘ but no rules for them.

And this at a time where the authoritarians in government seek to impose more and more rules on the public – especially those who its political and media supporters do not like.

At base this is not even about ideology.

There is nothing here so grand that can be articulated as any broad principle or general theory.

This is just akin to gangsterism.

Those under the protection of the centre – and those at the centre – should face no constraints on their autonomy.

While those on the outside of this protection, are under what ever obligations that centre believe should be imposed.

The problem for this being a driver of government in a democratic society is twofold.

First: not all governments exist forever, and there will be one point – eventually – where those on the inside will be on the outside.

And second: governments in a democracy ultimately require legitimacy – and doing ‘what works’ cynically can eventually have a counter reaction when the government needs broader support than whatever it can get away with.

So these antics may be clever, but they are not wise.

The public may not care now – and it may not ‘cut through’ – but sensible heads should steer the government away from this illiberal and misconceived approach.

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The UK state’s admitted collusion in the death of Pat Finucane should inform public debate on immunities for state agents and operatives

31st October 2021

My column in Prospect this month is on the ‘licences to kill’ that exist in the law of the United Kingdom.

But in case any person thinks that article is alarmist or somehow academic in averring the existence of such provisions and their implications, reference should be made to the circumstances of the death of Pat Finucane.

These circumstances are not as well known as they should be, and they should inform any consideration of the law and practice of lethal force by or on behalf of the United Kingdom.

These are three things to know.

First: the lawyer Pat Finucane was killed in 1989.

Second: in 2012, Sir Desmond Da Silva, the author of a government-commissioned report, concluded:

“Overall, I am left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA in February 1989 had it not been for the different strands of involvement by elements of the State. […]

“The real importance, in my view, is that a series of positive actions by employees of the State actively furthered and facilitated his murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice.”

(Paragraph 115 here.)

Third: the then prime minister of the United Kingdom David Cameron admitted and apologised for this collusion:

“The collusion demonstrated beyond any doubt by Sir Desmond, which included the involvement of state agencies in murder, is totally unacceptable.

“We do not defend our security forces, or the many who have served in them with great distinction, by trying to claim otherwise.

“Collusion should never, ever happen.

“So on behalf of the Government, and the whole country, let me say again to the Finucane family, I am deeply sorry.”

(Column 297 here.)

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There is, of course, a lot more that should be known about the killing of Pat Finucane by anyone interested in the history of Northern Ireland and in the history of the United Kingdom state.

But it should be more widely known that there is no doubt that the United Kingdom state colluded in the death of a civilian and the United Kingdom state has admitted and apologised for its collusion in this death.

This is therefore not the extreme accusation of some anti-government agitator but the confirmed position of the United Kingdom state itself.

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And so the possibility is not fanciful that powers and immunities that the United Kingdom state confers upon itself may be misused by the United Kingdom state.

The possibility of misuse is such that there should be anxious scrutiny of these powers and immunities.

The United Kingdom state does not say that it wants to kill people.

But by granting itself – and its officials and operatives – immunity from any legal liability, it is creating a situation where there is no legal disincentive from ensuring unlawful deaths do not happen.

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Budget special: the Fiscal State vs the Legal State

28th October 2021

Over at the London Review of Books there is a fascinating and informative review by Ferdinand Mount.

The review is of a book by Julian Hoppit about the history of tax and spending in the United Kingdom (which I have not yet read), but there are some thought-provoking points in Mount’s review.

The points in the review are, in effect, useful counter-balances to the usual critique of the United Kingdom constitution on blogs like this one and from other liberal constitutionalists.

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This usual critique is that there is an inherent illiberal problem with the constitution of the United Kingdom: that the doctrine of parliamentary supremacy creates a real scope for political dictatorship – even if this possibility has not (yet) been fully realised.

There is nothing to stop it, for there is nothing that can gainsay the legislative supremacy of parliament – and so an executive with an ascendancy in parliament faces no ultimate checks and balances.

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It was not always like this, of course.

In the early 1600s, the great lawyer Edward Coke averred that there were limits to what could be done by acts of parliament:

“for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void”.

But the political facts of the civil wars of the mid-1600s and of the deposition of a reigning monarch in 1688 meant that parliament became, in practice, legislatively omnipotent.

And this political reality was fixed into rigid ideological doctrine in the late 1800s by A. V. Dicey, whose articulation of the sovereignty of the crown-in-parliament has been orthodoxy ever since.

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As this doctrine of parliamentary supremacy took hold, there were voices of alarm.

In 1929, the sitting Lord Chief Justice – Hewart – published The New Despotism warning of the implication of the power of a government that controlled the legislature, for it would tend “to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme”.

In 1976, the Tory (former and future) Lord Chancellor Lord Hailsham warned of an “elective dictatorship”.

Both Hewart and Hailsham were experienced politicians as well as senior judges, and they could see how flimsy were the ultimate checks and balances on the executive.

All we had to rely on is what the constitutional historian Peter Hennessy has described as ‘the good chaps theory of government’.

This described how self-restraint was the primary reason why the executive did not carried away with its unchecked constitutional power.

And in an age of Boris Johnson and Dominic Cummings (and of Donald Trump and Steve Bannon), this is not a comforting prospect.

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So how did we end up like this?

Why has the United Kingdom state almost sleepwalked into creating the conditions where raw executive power is effectively unchecked?

Mount’s review provides an interesting explanation.

The explanation is that this was not any conscious political intention, but the implication and by-product of the fiscal state.

Here Mount’s review starts with this wonderful anecdote:

“‘You were so generous, you British,’ Hans-Dietrich Genscher, West Germany’s perpetual foreign minister in the 1980s, once remarked: ‘You gave us a decentralised federal structure and a proportional system of election so that never again could we concentrate power at the centre, but you took neither of these for yourselves.’ Canadians and Australians could say much the same […]”

Mount then explains why we did not take the liberal constitutionalist course we imposed on others:

“The answer provided by one strong, perhaps dominant, tradition in English historiography is that monarchy, single rule, is a remarkably effective system, the secret of England’s survival and, for many centuries, the driving force behind the expansion of its power. Hence monarchy’s enduring popularity. […]

“Kings of England commanded a range of power and control over all subjects which outdistanced supposedly greater monarchs on the Continent.’

“This power consisted, above all, in the capacity to collect taxes. There were popular eruptions and, of course, exceptions (smuggling was one nagging drain on revenue), but between the poll tax riots of 1381 and the poll tax riots of 1990, what’s remarkable is the docility, by and large, with which the English paid their taxes, even when they reached monstrous levels to finance the Napoleonic Wars and the world wars of the 20th century.

“[…] after each convulsion – the Civil War, the Glorious Revolution, the Great Reform Bill, universal suffrage – the essential supremacy of the queen-in-Parliament (‘absolute omnipotence’, in Dicey’s phrase) re-emerged virtually unchanged.

“In this version of history, Parliament itself is reduced to a serviceable appendage for securing popular assent.”

(By the way, Mount’s review is more nuanced than the quotations above may indicate, so don’t take those quotations as the entirety of his stated position.)

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In other words: what makes no sense – and is akin to madness – from a liberal constitutionalist perspective, makes perfect sense from a fiscal perspective.

The executive’s abilities to impose taxation and to obtain revenue, and to have general consent in doing both, benefits greatly from the crown-in-parliament.

Translating finance bills in to acts of parliament is the thing.

And because of this, few front-rank politicians of any party would want to question, still less disturb this happy political situation – other than legal-political observers like Hewart and Hailsham.

Politicians and parties simply want the keys to this efficient fiscal-legal-political state.

And indeed a great deal of the United Kingdom constitution – and its history – is best understood from a fiscal perspective – including the respective powers of the two houses of parliament following the 1909-11 constitutional crisis.

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But.

What happens when the priorities of a government are not limited to the mundane business of tax-and-spend, but expand instead to wanting to use the executive in hyper-partisan exercises to stoke endless culture wars, and so on.

For not only do new ministers get they keys to the efficient fiscal-legal-political state, they also get the keys to unchecked executive power more generally.

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What is useful about being informed (or reminded) as to why the constitution of the United Kingdom came to be in its current arrangement is that at least it explains a thing which is a horror from a liberal constitutionalist perspective.

And it forces the question: can the constitution of the United Kingdom be reformed so as to become less of this liberal constitutionalist horror without losing the fiscal-legal-political efficiency that politicians (and – presumably – their voters) find so attractive and will not plausibly relinquish?

This is a difficult question.

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The phrase ‘enshrined in law’ has met its perfect subject: sewage.

27 October 2021

At last the phrase ‘enshrined in law’ has met its perfect subject.

Sewage.

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This blog has previously averred that ‘enshrined in law’ is one of the most dishonest phrases in the political lexicon.

https://twitter.com/law_and_policy/status/1453040659846336512

This is usually for one of two main reasons.

First: a commitment ‘enshrined in law’ is often accompanied by various get-outs, or is in broad terms – so it has no real legal effect.

For example, the supposed spending commitment on international aid.

Or second: the doctrine of parliamentary supremacy means that anything done by a statute can easily be undone by a statute.

This is because placing something on a statutory basis does not give it some super-duper magically entrenched power.

For example, the successive Brexit dates that were ‘enshrined in law’ before being postponed.

In the constitution of the United Kingdom it is impossible for any provision to be ‘enshrined in law’ in any meaningful way.

It will always be one political move away from circumvention or frustration, or a simple parliamentary move away from amendment or repeal.

The phrase ‘enshrined in law’ is therefore used by political and media fools, or by political and media knaves taking you to be a fool.

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And so yesterday this dreadful phrase found its natural policy home.

The government’s apparent u-turn (or u-bend, in the circumstances) over sewage.

Last night the government published this statement:

“The Government has today (26 October) announced that the Environment Bill will be further strengthened with an amendment that will see a duty enshrined in law to ensure water companies secure a progressive reduction in the adverse impacts of discharges from storm overflows.”

This statement is political sleight-of-hand (and in a normal world would not be on an official government website in this form, but – hey – those days have gone).

For instance, the term ‘further strengthened’ is in tension with the government’s own backbenchers voting against the house of lords amendment on this very point.

What has happened, of course, is that there has been a political storm overflow, drenching those nod-along government supporters who voted down the amendment with the raw product of popular dissatisfaction.

And so the government has had to reverse its position, while getting publicly funded officials to misdirect the public about it being a ‘further strengthening’.

But.

If you look carefully at the statement you will notice something that is not there.

There is no text of an amendment.

And this, no doubt, is because the there is no text of the amendment, for the amendment does not yet exist.

So we have the spectacle of the government asserting that there will be a ‘further strengthening’ of a bill without saying how this will be done.

Just words, and air.

And it is this vapour is what will be ‘enshrined in law’.

Misdirection upon misdirection: government by panicky press release.

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Whenever the phrase ‘enshrined in law’ is used then there is foolishness and/or knavery afoot.

Either the person saying this does not understand the law or that person is wanting to mislead you about the law.

And, in either case, something is being done that has not been properly thought-through.

The phrase has always come with a smell.

And we now know what that smell is of.

Sewage.

******

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The Ministry of Justice needs leadership – but we are served scorecards

25th October 2021

Another weekend gone, and another proposed ministry of justice policy reported in the Sunday press.

The last one, if you recall, came from an interview given by the new justice secretary and Lord Chancellor (and deputy prime minister) Dominic Raab to the political editor of the Sunday Telegraph.

There he spoke of a ‘mechanism’ for ministers to ‘correct’ judgments which they happened to disagree with.

And not just any judgments, of course, but those where the courts had found that the state had interfered with fundamental rights and freedoms.

One would have thought that, if the effect of such judgments needed to be overturned, this would be a matter for parliament.

But no: ministers should be able to do this, it would seem, at a whim.

As this blog averred, the fact that such a thing was his ministerial priority when the criminal justice system is in crisis was enough to make any sensible person weep.

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We now have another proposal, given to another political editor at another Sunday paper (though this was not an on-the-record interview but from a ‘source’, so it may have come from special advisors as opposed to from the justice secretary directly).

Scorecards.

This new proposal is as follows:

– Raab ‘wants people to be able to look up their local court online and check how quickly cases are dealt with’;

– the new national register ‘will give scores on the speed cases go through the system, and on the ‘quality’ of justice served, measured by the percentage of guilty pleas before cases come to court, as well as the number of cases rearranged because of problems with the prosecution’;

– the register will also score ‘victim engagement’, described as ‘how many crime victims give up and drop out of the process’

– the justice secretary has said ‘he wants ‘granular data’ on how courts are performing across the justice system’;

– the scorecards will be ‘introduced by the end of this year and data will be updated twice a year to monitor progress’; and

– it ‘is understood the Justice Secretary is keen on introducing scorecards on a regional level, so that in future members of the public would be able to look at the performance of local courts’.

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One response to this proposal is to point out (which the ministry of justice ‘source’ either did not know or kept hidden) that much of this data is already published.

That statement of the should-be obvious fell to the main opposition spokesperson on justice:

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And Lammy is right in another respect: the intention between this policy seems not for data to be published, but for court users to be misdirected.

The notion appears to be that court users will use the scorecards to put pressure on courts to perform better, and for courts to feel under pressure to show court users that they are performing better.

Court users will thereby be (mis-)directed into thinking that poor court performance is a matter for the individual courts.

But.

The problem about the court system is not micro, but macro.

The system is structurally under-resourced, and it needs leadership.

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Here, let us turn our attention from the Sunday press to the National Audit Office:

The NAO published a major report just before the weekend.

The NAO did not propose scorecards.

Instead the NAO said: “if sustainable recovery in criminal courts is to be effective, the Ministry will need to improve its leadership of the system”.

Leadership.

Yes, the NAO used the ‘L’ word: Leadership.

But instead of leadership and solid policy, we get another weekend-special gimmick.

And not only just a gimmick – but one which appears to have the intention of misdirecting court users.

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As this blog has previously averred: it does not have to be like this.

The justice secretary is a senior cabinet minister with the title ‘deputy prime minister’, as well as an experienced lawyer.

As such he is better placed than most recent justice secretaries to obtain better funding from the treasury, and to win the prize of serious reform.

But yet another weekend goes by where we are served trivial trinkets, instead of such a prize.

It is still enough to make any sensible person weep.

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‘Parliamentary Sovereignty’ and ‘Parliamentary Supremacy’

24th October 2021

In the Attorney General’s interesting recent speech on judicial review, there is the following passage:

“But this flexibility, this resilience, should not obscure the central principle embedded in the very heart of our constitution, of fundamental importance since at least 1689.

“That principle is Parliamentary Sovereignty – it both underpins and anchors our constitutional settlement.

“I agree with the position as advanced by Lord Bingham in Jackson v Attorney General:

“‘The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament . . . Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority.'”

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The sharp-eyed among you may have noticed that the speech here switches between ‘parliamentary sovereignty’ and ‘the supremacy of the Crown in Parliament’.

Two s-words.

And you can see that the second s-word used is qualified by the term ‘Crown in Parliament’.

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Some use the two terms ‘parliamentary sovereignty’ and ‘parliamentary supremacy’ interchangeably, as constitutional synonyms.

I try to avoid doing this, as I think there is a distinction between the two.

This is because parliament, in and of itself, is not sovereign.

What may be sovereign is, as Lord Bingham was careful to say but the Attorney General was not, is ‘the Crown in Parliament’.

An Act of Parliament – following royal assent – is the supreme law of the land.

But nothing else done by parliament is ‘sovereign’.

For example: a parliamentary resolution or standing order binds only parliament (if at all)

And statutory instruments can be struck down by the courts as ultra vires the parent Act of Parliament.

Parliament is only sovereign when its primary legislation is endorsed by the crown – and not in respect of any other activity.

Even the limits of so-called parliamentary privilege are subject to judicial construction and interpretation.

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The former appeals judge Stephen Sedley avers – correctly in my view:

“It needs to be understood, because events in the earlier part of [the twentieth] century have obscured it, that there are within the separate powers of the modern British state two sovereignties, those of Parliament and the courts.”

Sedley in turn quotes Lord Bridge from a 1991 House of Lords Case, X Ltd v Morgan Grampian (Publishers) Ltd:

“The maintenance of the rule of law is in every way as important in a free society as the democratic franchise.

“In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law.”

In other words: in interpreting and applying the law – but not in making or unmaking the law – the courts are sovereign too.

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This is not – or should not be – a surprise.

The sovereign entity in the United Kingdom is – as the label suggests – the monarch.

In law-making, the Crown and parliament are sovereign.

But in interpretation and application of the law, the Crown and the courts are sovereign.

Indeed, if you ever wander into a formal courtroom, you will often see the crown above the head of the judge.

(And just as those in the armed services salute the badge and not the person of a senior officer, when lawyers and others in court ‘all rise’ they are effectively paying respect to the source of the court’s power, and not to the person of the judge – or at least that is what you can tell yourself.)

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None of the above takes away from the legislative omnipotence of parliament in enacting primary legislation.

And it is certainly not an error to say ‘parliamentary sovereignty’ when one speaks of primary legislation.

But to do so may imply that parliament is the only form of state sovereignty in the United Kingdom (at least in England and Wales).

And it may imply that parliament is sovereign in some other respect than in enacting primary legislation.

Her Majesty’s Courts are, well, the Crown’s too.

And in interpretation and application of the law, the Crown and the courts are as sovereign as the Crown and parliament is in making and un-making the law.

So that is why – though it is only a personal preference – I tend to say ‘parliamentary supremacy’ – and not ‘parliamentary sovereignty’.

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The Executive Power Project continues – the interesting speech of the Attorney General

20th October 2021

There is a thing called the Judicial Power Project, which – as its name does not suggest – is not really about judicial power.

The project is about promoting executive power and is generally against any judicial check or balance of that executive power.

Sometimes it may affect to be defending ‘parliament’ or ‘the people’ against the judges – but it will complain of cases (such as the Miller cases) where the courts have been resolute in upholding the democratically elected parliament against the executive.

This executive power project had been fairly quiet in recent times – but it is back.

The Attorney General has made a speech – and it is not a flimsy speech – setting out a general critique of judicial power which could have been written by the executive power project themselves.

In one way, we should be grateful – for it is useful to have the arguments and contentions (and the case references on which those arguments and contentions rest) all in one accessible place.

And it is also good that it was done in a speech before a serious legal audience – and thereby ‘on the record’ – as opposed to briefed to the media or in an interview with a political reporter.

One does not have to be a great fan of the current Attorney General to admit that this was the right way to set out this general critique.

But.

The speech is not compelling – and this blog will in a few days set out a reasoned response to the speech.

It is, however, my tribute to the speech that it cannot be dismissed within a few minutes of reading it by a scathing blogpost.

The scathing post on this blog will have to take a bit longer.

In the meantime: here is a YouTube video Professor Mark Elliot, one of the leading experts in this area:

And this is his thread:

At least this speech means there is now the possibility of a proper political and policy discussion – or even a debate – about this general issue.

I will put up my post on the speech in a day or so.

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