Category: Liberalism and Illiberalism

Some of President Carter’s judges can still judge, 44 years later – and so we can see how long Trump’s new nominees will be on the bench

New year’s eve, 2024

The former US President Jimmy Carter, who has just died, left office in January 1981 – just under 44 years ago.

Yet one of his many bench nominees was still actively serving as a federal judge as recently as 2021:

And that list also indicates that about 29 of those judges – while not on active service – have the semi-retired “senior status” and so can still serve as judges if required.

This shows the significant lingering power of every US President on the shape of the judiciary.

A 100 year-old president former president has died who left office over 40 years ago, and yet his appointments can still decide cases.

Bringing this around to today: the newly re-elected Donald Trump and the Republican Senate will be appointing a raft of young conservative judges to the judicial benches, in addition to those which were appointed during his first term.

And some of these will still be judging (or able to judge) in 40 or 50 years – long after many of you reading this post may be here.

The lingering effect of the two Trumpite moments will last for political generations. Some appointed judges may see out ten or more presidential terms and still be judging.

And judicial time limits are now more unlikely than ever: Trump and the Republican senators have no interest whatsoever in limiting the enduring power of their nominees. And presumably as and when (or if) the Democrats ever regain power, they will have no interest in limiting the terms of their appointees.

This is a practical effect of how what some say (or hope) may only be short-term political surges can have consequences that will last decades.

(See also: Brexit.)

We are not dealing only with the politics of the here and now, but about the law and government of the hereafter.

Perhaps things will one day get better for liberals and progressives.

Perhaps.

But it is going to be a long haul.

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Happy new year to the readers of this blog.

Thank you for your ongoing support.

There is going to be a lot to write about in the new year – and I am also going to explore the law and policy of AI, following my Candlemas story.

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The illiberalism yet to come: two things not to do, and one thing to do – suggestions on how to avoid mental and emotional exhaustion

18th November 2024

The new Republican presidency-congress in the United States as well as developments in other countries mean that in addition to the illiberalism we have had so far, there is more – perhaps worse – to come.

So how should liberals respond?

Here are three suggestions, humbly put forward.

1. Do not respond, if you can, to catastrophism. You are going to think how bad things can be, and will project this on to the other side. You will then react to what your mind has conjured up. Even if those projections are plausible, this will exhaust you quickly. You will have little energy or focus left for what they do come up with.

2. Do not respond, if you can, to what the illiberals say they will do. They will goad you and frighten you, as they enjoy “owning the libs”. They like the sound it makes, the reactions they can get. Again, even if these threats are plausible, reacting to each bare threat will exhaust you quickly. You will again have little energy or focus left for what they do come up with.

3. Respond, if you can, to what they actually do – not what you fear they will do, or even what they say they will do. What they actually will do will be bad enough, and will need your energy and focus. The illiberals will hope – and expect – that all the noise and fears under (1) and (2) will mean that by the time they do put measures forward, they will have little opposition.

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As Margo Channing in All About Eve said, we are are in for a bumpy ride.

We don’t need to make it even bumpier for ourselves.

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The shapes of things to come – some thoughts and speculations on the possibilities of what can happen next

8th November 2024

The working assumption of many in reaction to the re-election of Trump as President is that he will serve a full term.

And that is the most likely outcome, as that is what presidents tend to do once elected: they serve out their term.

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But there are other possible outcomes.

Some outcomes are morbid, and they are possibilities for any president, especially for one advanced in years.

And there is the possibility he may step down mid-term – or be replaced mid-term.

If Trump stands down mid-term, the new President Vance could pardon him for all and any federal crimes (though not state crimes). This would meet one of Trump’s presumed objectives for having re-run for President.

And if the timing of the replacement is done just right then a President Vance has the prospect of up to (but not quite) ten years in office: here the Twenty-second amendment to the US constitution provides:

“Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. […]”

If the replacement is done on the day after the second anniversary of the start of the term, then there would seem nothing to prevent a President Vance from then running for election and then re-election as President.

[Edit – in other terms: (2 years minus one day) plus 4 years plus 4 years.]

It can also be noted that in a way Trump has done his job for his backers in getting re-elected and, accordingly, there is nothing more he can personally do for them which another friendly occupant of the Oval Office cannot also do. If their objective is dominance over the medium- to long-term then they will be already thinking about the approach to the 2028 election.

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And if there are doubts (real or otherwise) about the cognitive alertness of President Trump there is also the Twenty-fifth Amendment, where a President can be effectively removed against their will, on declaration of the (well) Vice-President and others.

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On the other hand, a President Trump serving a full term may suit his backers just fine.

Trump is not a President to personally drive legislation through Congress – he is not a Lyndon Johnson or a Franklin Roosevelt.

But with a Republican Senate he does not need to do so: they can drive through the legislation themselves, subject to the final composition of the House of Representatives.

What a lazy president enables is for those around him to dominate the judicial nominations and discretionary powers.

So we can expect a raft of conservative nominations for the judicial benches – and for Justices Clarence Thomas and Samuel Alito to stand down and be replaced by 40 or 50 year-old strong conservatives, nominated by Trump and approved by the Senate. That will secure the Supreme Court for the conservatives for at least another twenty years, if not more.

And we can expect a huge amount of Executive Orders and such like, which in turn will be upheld by conservative judges – for who needs congressional legislation when you can have the combination of executive rule-making and nod-along judges?

Those around Trump will not be the inexperienced incoming staffers of the 2017 presidency, but people who know what to do and how to do it, many with hard experience of the first Trump presidency.

They will know what to do so as to fit things around a golf-playing president.

Trump himself may not be busy, but those around him will be.

Brace, brace.

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A postcard from the day of an election – capturing a political-constitutional moment

5th November 2024

Today is the day of the American presidential election.

Sooner or later there should be a result – even if, like four years ago, there is drama (or worse) all the way into the new year. And when there is some sort of result then there will be those who will explain why that was always the most likely result. Such is the nature of punditry.

But today, all is uncertain.

On the face of it, it would seem that Harris should win. Trump does not seem stronger than he did four years ago – or two years ago when his endorsed candidates did badly. He is also a more divisive figure than he was when he won eight years ago, and he is against a less divisive candidate.

But, we are not in times where such a rational view has much purchase. We are in a period of populism and hyper-partisanship and disinformation, of joyful cruelty and illiberal frenzy. One can too easily imagine Trump winning. Less likely things have happened in the United States and around the world in recent years.

And if so, we will have an extraordinary situation of a president with criminal sanctions and facing criminal trials using the might of his office to reduce his exposure to any proceedings.

And we will have a president who boasts of wanting to also use the might of his office against political enemies, both personal and general.

The only liberal hope would be that, again, he is too lazy to follow-through on his threats, and that the swings he takes will be on the golf course, and not from the Oval Office.

In the days, weeks and months to come, things may be clearer – though even that cannot be said with absolute certainty – but as of today, things are unclear and they are worrying.

So it seemed to be a moment worth recording, using this blogpost as a postcard.

And to adapt the wording of a postcard: I wish we weren’t here.

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Seven changes for a better constitution? Some interesting proposals from some good people.

24th June 2024

In the Times today there is a letter published from various good sorts putting forward seven practical and easy-to-make steps for a better constitution.

One of the signatories, David Anderson, helpfully posted the letter on Twitter:

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Of course, changes to form and structure can only take us so far. The biggest problem of recent years has been an underlying lack of constitutionalism from government ministers (cheered and clapped by their political supporters). And until attitudes change, then rules will always be gamed or ignored and discretions abused.

But, there has to be a start somewhere to repair the damage, and these are interesting proposals.

The suggestions appear to be:

  • independent enforcement of a new ministerial code;

  • establishing new systems for managing conflicts of interest;
  • ditto, for lobbying;
  • improving regulation of post-government employment;
  • ensuring appointments to the Lords are only made on merit;
  • ensuring other public appointments are rigorous and transparent; and

  • strengthening the independence of the honours system, including by ending prime ministerial patronage.

The worthies aver that legislation is not necessary for most of these changes but a short bill would create the necessary powers and embed the independence of the ethics and integrity system.

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Some may say that these proposals are a little “apple pie” – but they would be a move in the right direction, the least that can be done.

Words like “ensuring” and “strengthening” are easy to type – and they are almost as easy to put at the start of a sterling bullet point.

But what is the actual check on misuse? Who in practice will have the power and authority to say “No” to a trespass by a minister of the crown (or by a former minister of the crown)?

The robustness of any regulatory system is not so much in the rules being themselves commendable, but in the rigorous enforcement of those rules and in the ready and realistic availability of sanctions for breach.

In a word: there needs to be tension.

And in our constitutional arrangements, as they stand, only parliament and the courts – rather than third party agencies – have the strength and the legitimacy to check the executive on an ongoing basis, and so for each of these seven laudable aims, one question is how they can be enforced against the government’s will by other strong and permanent elements of the state.

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The strange omission in the Conservative manifesto: why is there no commitment to repeal the Human Rights Act?

12th June 2024

As each party manifesto is published online, and for my own easy amusement, I like to search the pdf for words like “enshrine” and “clear”.

And after that easy amusement, I look for more serious things.

Yesterday the Conservative manifesto was published.

(Many “clears” but disappointingly only one “enshrine”.)

What were the Conservatives were promising (threatening) this time for the Human Rights Act?

 

Doing something to this Act has been a mainstay of every Conservative general election manifesto for as long as I can remember.

But the search return was…

…0/0.

I am a clumsy typist and so I thought: a typo. Let me try again.

And it was still a nil return.

Something must be up with the search function, I thought.

And so I tried “ECHR”.

I even typed out in full the “European Convention on Human Rights” and the “European Court of Human Rights”.

Nil, nil.

How odd.

Could it be that the manifesto actually did not threaten the Act or the Convention?

Well.

A closer look revealed one fairly oblique mention:

Of course, the European Court of Human Rights is not meaningfully a foreign court: it has British judges, British lawyers can appear, British residents can petition the court or appeal cases there, and its caselaw can be relied on in our domestic courts. Foreign law usually is a matter of expert evidence, but Strasbourg case law is part of our own jurisprudence.

It is an international court, of which we are part, rather than a foreign court.

But that is by-the-by.

What is significant is not this sort-of commitment, but the lack of any other promises (or threats).

It is an astonishing, unexpected absence for a Conservative manifesto – perhaps the manifesto equivalent to leaving a D-Day commemoration early.

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Over on Twitter, Adam Wagner noticed the same:

Of course, it must be noted that government has recently been disapplying the Act on a statute-by-statute basis, rather than making any full frontal attack.

But even taking that point at its highest, one would still expect an explicit manifesto commitment just for the claps and cheers of political and media supporters.

And this is a governing party that needs all the claps and cheers it can get.

It is a remarkable omission.

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And one suspects it is an accidental omission, for the governing party has little to gain by leaving it out, and something to gain electorally (or at least hold on to) by leaving it in.

If so, the possible significance of the omission is that the Conservative leadership, having got bored with the pretence that the Act will ever be repealed or substantially amended, simply are not thinking about it any more.

Their minds have moved on to other “red meat” for their more illiberal supporters.

But what it also means is that, in the highly unlikely event of the Conservatives staying in government after 4 July 2024, there is no manifesto commitment they can rely on in forcing any changes to the Act through the House of Lords.

What that in turn means is that the Human Rights Act will now be safe for the lifetime of the next parliament, whatever happens at the general election.

And that itself is quite a thing.

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Why Raab’s frontal attack on the Human Rights Act failed, and why the Home Office attack on human rights law is succeeding

25th April 2023

One big error by the former Lord Chancellor Dominic Raab was how he went about dealing with human rights law.

Raab insisted on outright repeal of the Human Rights Act 1998, and nothing else.

As this blog has previously averred, the Act was the Moby Dick to his Captain Ahab.

The Act had to go.

And this approach failed, even from an illiberal perspective.

For the Human Rights Act 1998 is still there, and Raab is not.

A more effective approach from an illiberal perspective is not the full repeal of the Act, but to slowly bit-by-bit reduce its effect and restrict its scope.

Take this simple clause 1(5) from the Illegal Migration Bill:

That is all that needs to be done.

For the Human Rights Act 1998 is only a statute, and what one statute provides another can take away.

The Act does not, from an illiberal perspective, need to be repealed: it can instead be subjected to dozens of similar “notwithstanding” clauses, in new legislation and amending old legislation.

There is no point in saying: don’t tell the government this!

Those in the government already know – that is why the Home Office lawyers have put that clause in the Bill.

They do not need Raab’s cavalry charge of full repeal: they can be more effective operating on the flanks, picking off targets as they choose.

Of course, if the government goes too far there may, perhaps, be an adverse adjudication by the European Court of Human Rights on such legislation.

But that would be a cost of government business, sometime down the road, and not something to prevent putting in such clauses now.

And the pushback against such clauses will be harder than defending an entire Act from repeal.

The government can and will be more savvy in its illiberalism.

And this is far more concerning, from a liberal perspective, than Raab’s futile whale-hunt.

The Human Rights Act 1998 may now be safe from repeal, but the reach of human rights law in primary legislation is certainly not safe from attack.

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New Essay at Substack: Perhaps the most significant UK constitutional case of the last fifty years

6th January 2023

Over at my new law and lore Substack, I have published an essay for paying subscribers on how the Malone case of 1979-1985 exposed the lie of our supposedly liberal constitution and changed the way we were governed.

The essay starts as follows:

Consider this simple, attractive proposition: in the United Kingdom, you are free to do as you will, unless there is a law against it.

What could be wrong with such a nice proposition: it is almost a perfect articulation of principled liberalism.

But.

This proposition can have a hidden and ugly implication.

For it also can mean that the State can do as it wishes, to you and other people, unless there is a law against it.

And the case which exposed this unpleasant truth – and helped put an end to it, so that the State was required to have a legal basis for interfering with our lives – is the 1979-85 case of Malone.

This is the story of that case, and of its effects.

You can read the rest of the essay with a paid subscription here.

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This essay is also being posted on Patreon for those who subscribe to this blog using that medium.

For those who subscribe and donate through either Patreon or PayPal, please leave a “PRIVATE” comment below confirming you want me to add your email address to the Substack system so you can have a one-year complementary subscription to the law and lore Substack.

It is important that nobody pays “twice” for my content.

Re-visiting the “codified constitution” debate after the Johnson and Truss premierships

26th October 2022

From time to time it is worth revisiting the question of whether we should have a codified constitution.

For many the answer is self-evident.

Indeed, one sometimes cannot imagine a political situation in the United Kingdom where somebody, somewhere would not add “and this shows why we need a written constitution”, as if it were some universal panacea.

The view of this blog, as you may know, is more sceptical.

There is nothing inherently good or bad about a codified constitution: the test is is whether the constitution is liberal or illiberal.

In other words: whether or not the constitution tends to permit unchecked and unbalanced executive, judicial or legislative power.

Those constitutions which do not check and balance such powers tend to be illiberal, and those which do tend to check and balance such powers tend to be liberal.

The test, for me, of a constitution is not whether it is codified or not, but whether it is liberal.

And if we were to somehow have a codified constitution it should be at least as liberal as the current uncodified constitutional arrangements.

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So: are our current constitutional arrangements liberal?

Some of you reading this will have Very Strong Opinions – and are undoubtedly and impatiently scrolling through this irksome post.

But.

Take a moment.

Here are three counter points to consider.

First, during Brexit, the Supreme Court twice stopped the executive from acting against the rights of parliament, in the two Miller cases.  And parliament itself was able to legislate for the Benn Act in the face of opposition from the executive.

Second, since 2016 the body politic has been able to regurgitate and spit out a sequence of Prime Ministers and other ministers who have been repugnant for one reason or another – Cameron, May, Johnson, Truss, and so on.

And third, and notwithstanding the nominal overall majority, we have ended up with, in effect, a hung parliament anyway.

If we were to have a more rigid, codified constitution that entrenches executive power, none of these things may have been the case.

We could, like in the United States, be stuck with a Trump-like politician for a term with only the clumsy and practically useless weapon of impeachment.

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That said, there are problems.

For example – yes, we have been able to spit out a succession of repugnant politicians, but it is hardly to the credit of our constitutional arrangements that we have had such figures becoming Prime Minister in the first place.

And we are still only one competent tyrant (and a parliamentary majority) away from the “supremacy of parliament” being used to create Enabling Acts conferring wide discretionary powers on minsters that courts will have to accepts as being unchallengeable.

Our constitutional arrangements may be liberal in some respects, but there is still the scope for abuse, as well as it providing a framework for inadequate politicians to take (as well as lose) powerful jobs.

And recent years have shown the limits of the “good chap” approach of ministerial self-restraint, with Johnsonian anything-goes.

The counter-case is strong.

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So there are reasons to be in favour of our current constitutional arrangements, but also reasons to be worried.

The next two years are, from a liberal and progressive perspective, likely to be grim – especially if the new Prime Minister and his cabinet are alert to avoiding the unforced errors of the last two Prime Ministers, and are able to “deliver” (ahem) their policy agenda.

We cannot always trust illiberal ministers to make easy mistakes.

And the next two years will be the real test of whether our constitutional arrangements are robust as well as liberal.

Brace, brace.

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The dropping of “The Bill of Rights” – and why it is both good and bad news

7th September 2022

The Human Rights Act 1998 is still in place.

And Dominic Raab is not.

Raab was three times a minister at the Ministry of Justice, and his personal and political priority was the repeal of the Act.

The legislation was the Moby Dick to his Captain Ahab.

But the whale has swum away again.

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Raab’s latest attempt to repeal the Act was the so-called “Bill of Rights”.

When this was published my reaction was that it was a dud and a misdirection.

In essence, the rights under the European Convention on Human Rights would still be enforceable in domestic law, but there would be lots of provisions to make such enforcement more difficult in practical situations.

The United Kingdom cannot leave the ECHR without breaching the Good Friday Agreement – and so the “Bill of Rights” was a cynical attempt to make it look like something fundamental was happening when it was not.

Given the MoJ is facing chaos and crises in the prison and criminal justice systems, it seemed an odd priority for scarce ministerial and civil servant resources, as well as a waste of parliamentary time.

And this was especially the case when repealing the Act was not even in the 2019 Conservative manifesto, and so such a move was likely to be blocked or delayed by the House of Lords.

It was difficult to conceive of a greater exercise in pointlessness.

But, for Raab, the Act had to be repealed.

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“All that most maddens and torments; all that stirs up the lees of things; all truth with malice in it; all that cracks the sinews and cakes the brain; all the subtle demonisms of life and thought; all evil, to crazy Ahab, were visibly personified, and made practically assailable in Moby Dick.”

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And now today, on the first full day of the new Prime Minister’s time in office, we read that the “Bill of Rights” is no more:

This revelation has the ring of truth.

The “Bill of Rights” is dead.

And so…

…Hurrah.

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But.

The cheers cannot last for too long.

For this further news is also important:

The quoted statement may look like verbiage – but it signals something important.

The “Bill of Rights” was always going to be a clumsy vehicle for all the illiberal provisions the government would like to have so as to make it more practically difficult to enforce convention rights.

And so instead of putting many of these illiberal provisions in one big bill that was likely to fail, the same illiberal ends will now be achieved in other ways.

These moves will be driven mainly by the Home Office, and not the MoJ.

This is a canny move by the government – even if it is an unwelcome one from a liberal perspective.

The claps and congratulations about the “Bill of Rights” being dropped should therefore not last too long.

The government is just going to seek the limit the benefits and protections of the Act in other, less blatant ways.

Dominic Raab and his “Bill of Rights” may have gone.

But the need to be vigilant about what the government wants to do with our Convention rights has not gone at all.

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