Both of these statements are common utterances in political conversation, and they are both possibly said by any of us on depending on circumstance.
Both statements seem to be different.
Yet both these statements are about the same situation: (a) a wrong has happened and (b) no law has been broken.
The difference between the statements is the attitude of the person making the statements, whether ‘something should be done’ or ‘there is nothing to see here’.
No principle or substance separates the two statements, only political expediency.
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The prompt for the observations above is, of course, the unfolding lobbying scandal in the United Kingdom.
The former prime minister David Cameron and certain former officials have been shown to be doing things which, in the view of the many if not the few, they should not have been doing.
But, as this blog and others have averred, the individuals concerned have not broken any rules because (it would seem) there are no rules to break.
A cynic would say that a this is the reason why the current prime minister has ordered an investigation, as it will be inevitable that the individuals will be ‘cleared’ of any rule-breaking.
But being ‘cleared’ of any rule-breaking is not the same as being exonerated of any wrong-doing.
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The alternative response to the current situation is to call for more rules.
This in part stems from the view – almost a surviving form of magical thinking – that a thing will not happen because there is a rule against it.
Laws as spells.
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But what seems to be needed here is not so much more prohibitions, and more codes to (creatively) comply with, but more transparency.
There will always be lobbying – and there is nothing inherently wrong in a democracy with any person seeking to influence those with power.
The important thing is that it is not hidden from view.
That the public can see, if it wishes, the influences being exerted on public policy.
That there are public processes in place for those approaches and exchanges to take place.
In a word: a lobby.
Think about the word, which the internet tells us is defined as:
‘a room providing a space out of which one or more other rooms or corridors lead, typically one near the entrance of a public building’.
And this is the source of the word ‘lobbying’.
Lobbying took place in a lobby: a public or at least quasi-public space.
The time has perhaps come for the practice of lobbying to go back to its root – and for there to be a formal (and, if need be, virtual) lobby where there these exchanges happen and can be seen to happen.
It is perhaps time for the return of the lobby.
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For the government. and its political and media supporters, the judiciary are the ‘enemies of the people’.
The view is that that it is no business of activist judges to interfere with what ‘the people’ want.
It is a view that led the London government to oppose the supreme court determining the two Miller cases.
It is also a view that informs the current attempts by the government to limit judicial review and the scope of the human rights act – to the claps and cheers of many who (frankly) should know better.
But it is a shallow view, adopted out of convenience and partisanship.
For, when the political boot is on a different constitutional foot, the government suddenly values an independent judiciary being able to assess the constitutional propriety of a measure:
Also note the response of the London government’s former chief legal official:
So it seems the UK government is (after all) happy for the Supreme Court to police the boundaries of the constitution. Which is indeed its job. https://t.co/LgHsjphNdN
From a political perspective, this referral prompts mixed feelings.
My political view is that a Scottish parliament can and should be co-equal with the Westminster parliament – as the legislatures in Canada and Australia are, even if nominally under the same head of state.
As such, it is frustrating to see the emphatically supported view of the Scottish parliament potentially stymied in this way.
But a political view is not always the same as a constitutionalist perspective.
And under the current constitutional arrangements of the United Kingdom, this is a question that can be referred to the supreme court – and as such there is nothing unconstitutional about the London government doing so.
(Whether those should be the constitutional arrangements is a different question.)
It is sheer hypocrisy – and there is not other word – for the London government, and its political and media supporters, to pick-and-choose when the supreme court gets to determine constitutional questions.
Either the supreme court is a constitutional court or it is not a constitutional court.
And it should not be regarded as only a constitutional court when the London government wants to face down Edinburgh, Cardiff, or Belfast.
A constitutional court is not and should not be regarded as an imperial court.
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The United Kingdom ceased to be a member of the European Union over fourteen months ago, and the transition arrangements came to an end on 31st December 2020.
Regardless of whether you take the fourteen-month or the four-month period as the true duration so far of Brexit, what is not coming into view is the shape of the future relationship.
My own view – which is pretty much a minority view, as it has been since the dawn of Brexit – is that the United Kingdom and European Union would be best having a close association agreement, where the the legal form would be that the United Kingdom was not a member of the European Union but the substance would be that we would continue to be part of the single market and the customs union.
Issues of representation, consultation and mutual influence would be dealt with by dedicated EU+UK institutions – and such consensual and sustainable institutions would be the answer to the charge that the European Union would be imposing law and policy on an independent United Kingdom.
But this middle way position is still not in sight, and many still see the Brexit debate in the leave/remain binary.
As far as I am aware, no front-rank politician has yet set out a positive vision of the institutional, law and policy framework of the relationship of a post-Brexit United Kingdom and the European Union.
The government is still in its toy-room of gesture politics.
The official opposition is silent.
Those in favour of the United Kingdom becoming a member (again) of the European Union are still – wrongly, in my view, for reasons set out here – emphasising rejoining the European Union, rather than making a positive case from scratch, that is a case without depending on our previous membership.
Those remainers who accept Brexit in principle are saying little about how the United Kingdom should engage
Those in favour of Brexit in principle are still, to use the famous phrase, the dog that caught the car.
There is drift instead of where post-Brexit development of medium- to long-term policy should be.
The removal of Trump from the American presidency and the ongoing pandemic are further disorientating features.
In the absence of constructive policy formulation, we have from ministers shouty confrontation and culture wars instead.
But as was averred on the cover of a Fat Boy Slim album, they are already number one, so why should they try harder?
The politics of Brexit and beyond have still not settled.
Maybe they will not settle for some time.
Maybe, even, we are still in the early years of a Boris Johnson government – or that he will be replaced by someone even less suited to building a constructive relationship with the European Union.
And, to be even-handed, there is little sign in Brussels and other European Union capitals that they too are seeking a new model relationship with the United Kingdom.
If anything, there is a defensive-rearguard urge just to keep the current withdrawal and relationship agreements in place, let alone think about the future.
And the impending Scottish elections and the politics of Ireland and Northern Ireland may even mean there be soon no United Kingdom to have a relationship with the European Union.
All up in the air, still.
So four months on, there is almost no indication of what the long-term post-Brexit relationship will be like.
Volatility may be the new norm.
Brace, brace.
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The office of the prime minister was not invented in one sudden moment.
The term ‘prime minister’ came to be used generally over time to describe the main minster of the crown, and who was answerable to parliament.
For a long time, the office of prime minister was invisible to our constitutional law.
The first time it was used in a formal instrument was, we are told, when Benjamin Disraeli signed the treaty of Berlin in 1878.
Even in the twentieth century it hardly left a trace on the statute book.
And this gives us an insight in to the strengths and weaknesses of the position.
In constitutional theory, the power of a prime minister derives – ahem, primarily – from two sources.
First, the prime minister has powers derived from the royal prerogative – the fiction being that the prime minister exercises those powers on behalf of the crown.
Second, the prime minister has powers derived from commanding a majority in the house of commons – and thereby control over finance legislation.
The prime minister’s power rests thereby on two constitutional stools.
What the prime minister does not have – at least not formally – is his or her own explicit constitutional centre of gravity.
Almost everything a prime minister can and cannot do ultimately comes from, in theory, either the crown or parliament.
This, in turn, means that the office is difficult to ‘reform’ – for as there are almost no legal instruments that set out the powers of the prime minister, there is no text to amend or replace.
It would be like trying to net a constitutional ghost.
It also means that the office can be as powerful and as weak as personalties and circumstances allow – you would not be able to tell just from constitutional law alone why certain prime ministers are strong or otherwise, and how certain prime ministers lose power.
For explanations for why, for example, Margaret Thatcher and Tony Blair both left office despite winning three general elections each you will have to look at books about politics and not about constitutional law.
And so what we are celebrating is not so much three hundred years of an office but a lack of a defined office, but one at the centre of practical political power.
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Ten years ago this month the singer David Emmanuel – known as Smiley Culture – died under arrest during a police raid.
The cause of death was a knife wound – which the police said was self-inflcited.
Ten years ago I blogged about this extraordinary death – and so this post is a follow-on so as to see what happened (and did not happen) next.
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Smiley Culture was part of the soundtrack of those of us brought up in the 1980s.
Have a click and listen and watch.
The sneering, aggressive vocal characterisation of the officer – ‘Shut your bloody mouth. We ask. You answer’ – felt spot on for those in communities which dealt with the police.
Police Officer especially caught a certain mood about the police’s attitude.
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Here is the singer posing outside a south London police station on the cover of the single:
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The news of the circumstances of the death of Smiley Culture seemed – literally – incredible.
That someone could stab themselves fatally in the chest in the presence of police officers seemed surreal – like something akin to those lines in the Blackadder episode Dish and Dishonesty.
But this – horrifically – was real, not a fiction.
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The name of Smiley Culture is now recalled as one of a long list of name of black people who have died in police custody or in similar situations.
So what happened with his case?
Putting events together now, the main consequence of the death was a coroner’s inquest in June-July 2013.
After a two-week hearing, the jury returned a majority verdict that the cause of death was indeed suicide.
(A majority verdict, of course, means that the jury could not come to an unanimous verdict, which in turn means that at least one juror had doubt that it was a suicide.)
According to a BBC report, the inquest heard medical evidence that the fatal wound could have been self-inflicted, if the right spot was chosen:
‘Dr Nathaniel Cary, who carried out a second post-mortem examination on Mr Emmanuel’s body, said told the inquest it was possible the fatal stab wound was, as described, a self-inflicted injury.
‘But he said that on pathological grounds alone there was nothing to determine that this was the case, although it was fair to say the site chosen may be used in self-infliction.’
The majority of the jurors accepted this as the explanation.
As counter-intuitive as this verdict may seem, it must be remembered that those jurors sat through two weeks of evidence – which was cross-examined on behalf of the deceased’s family.
But another person who sat through that hearing – the daughter of Smiley Culture – was not satisfied.
‘After listening to over two weeks of evidence and having had the opportunity to test the accounts of the officers, I feel no closer to the truth than I did before.
‘I have approached this inquest with an open mind hoping to hear for myself what happened on the day of my dad’s death.
‘Despite the jury’s verdict, the inconsistencies in the evidence have only served to raise serious concerns on my part about what really happened on the morning of March 15 2011.’
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That a person in a room drinking tea with a police officer should suddenly get up, produce a large kitchen knife and plunge it in his own chest so as to kill themselves is, even accepting the jury’s verdict, an extreme fact situation.
Even if it were suicide, there are questions to be asked about how it happened, and answers to be given in the public interest.
‘Despite the suicide verdict, the jury did find that the way in which Mr Emmanuel was supervised following his arrest materially contributed to his death. In particular, the fact that a single officer was left to supervise Mr Emmanuel while also completing paperwork was felt to be inappropriate.
‘The inquest has also highlighted serious failings in the Independent Police Complaints Commission’s investigation, including a failure to attend the scene until some four hours after the event, a failure to secure all relevant evidence, and a failure to critically analyse opinions expressed by the expert witnesses.
‘Following the verdict, the Coroner, Mr Richard Travers, said that he would write to the Metropolitan Police Service, highlighting failures that contributed towards the death, making recommendations for changes aimed at preventing similar tragedies in future.’
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The (then) Independent Police Complaints Commission issued the following press release after the inquest verdict (emphasis added):
‘Following today’s conclusion of the inquest into the death of David Emmanuel, also known as Smiley Culture, IPCC Commissioner Mike Franklin said:
‘David Emmanuel’s death caused huge shock, anger and disbelief in the community and I am aware that many people, most importantly Mr Emmanuel’s family, have waited over two years for the evidence to be heard at an inquest.
‘The ongoing dynamic assessments made by officers on the 15 March 2011 were left wanting. Four experienced officers felt it appropriate to detain a suspect in the kitchen, potentially the most dangerous room in the house and afforded him a level of freedom not normally associated with an operation of this kind.
‘The IPCC has made a series of recommendations to the Metropolitan Police following this investigation presenting them with areas that should be reviewed and changed in light of the findings. These include recommendations on dynamic risk assessments, the sharing of information and use of officer personal safety equipment.
‘The IPCC made two national recommendations following this investigation. The first is that officers should always detain people in the safest part of the house. Therefore kitchens must generally be avoided at all times. The second national recommendation focused on officer safety equipment and that all officers and staff attending search operations should carry with them the appropriate personal safety equipment.
‘While the IPCC highlighted these areas of learning for the MPS, the officers’ actions did not meet the threshold for misconduct under the Police (conduct) Regulations 2008 and no disciplinary action has been recommended.
‘I hope that this inquest has provided Mr Emmanuel’s family with some of the answers they and the community have so patiently waited for. This has been a long process for all the parties involved and I would like to thank them for their patience.
‘Notes to editors
‘Mr Emmanuel died on 15 March 2011 of a single stab wound through the heart at his home on Hillbury Road in Warlingham, Surrey. Four officers from the Metropolitan Police Service (MPS) were at the house at the time, carrying out a search of the property.
‘After careful consideration and in consultation with lawyers from both the IPCC and the Crown Prosecution Service (CPS), Commissioner Mike Franklin, took the decision not to formally refer the case to the CPS as the investigation found no evidence that a criminal offence may have been committed.
‘Consideration was also given as to whether the actions of individual officers met the threshold for misconduct under the Police (conduct) Regulations 2008. The investigation found there were no individual failings which, for the purposes of the Regulations, amounted to misconduct.’
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So the conduct of the police was ‘found wanting’, somebody died under arrest, but this was an opportunity for ‘learning’ rather than any formal proceedings.
The coroner, in turn, also made recommendations.
Thanks to a tweeter, we have what appears to have a formal record of the recommendations:
Presumably this is report 208 on p39 at https://t.co/2zixUC50Q4 ? If the inquest had been 4 weeks later we could read the letter and responses.
No doubt in each of those situations there are special facts – but it is marked that the police rarely face any proceedings, let alone criminal charges for any of these deaths.
And it may well be that the close scrutiny of each case could dispel any suspicion that something wrong happened every time.
But the accumulation of deaths as set against the absence of successful prosecutions seems to be a mismatch.
Given the facts of the death of Smiley Culture, as determined by a majority of a jury, it may contested that his death is not as glaring example of this apparent trend of injustices as many others.
But like one or two of the others that have died while in the custody (or ‘care’) of the police, he happened to be more famous than the rest, and so his is one of the names that will be cited.
And even the IPCC found the conduct of the police at the time of his death to be ‘wanting’ – with both the IPCC and the coroner separately making recommendations about how such searches are conducted in future.
So even if one accepts the coroner’s inquest – and again the jury heard the relevant evidence cross-examined and a majority of those jurors were convinced it was suicide – the death followed carelessness by the police.
I am still seeking to find out if those recommendations were formally accepted by the police and the home office – though I have been told by police sources that the training for such searches now includes the need for risk assessments that would cover what happened in the death of Smiley Culture.
I will post here again on this subject when I have further information about what happened with the recommendations of the coroner and the IPCC.
It is important to follow these things through, even ten years later – especially as black people continue to die in police custody, and there are never any formal proceedings.
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If you have not read it, go and read it now – else the rest of this post will make little sense.
And if you have read it, go and read it again.
This is because there is no way that a summary of that article by me will be adequate.
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Everything Docx says that touches on certain law and policy issues over the last few years is true.
Brexit is indeed ‘an act of symbolism at the expense of everything else.’
The lack of seriousness about law as an illustration of the the lack of seriousness generally: ‘the teetering unicycle of Johnsonian buffoonery – A-levels, school meals, foreign health workers and more. A country of tumbling catastrophes. Trampolining absurdities. Go to work. Don’t go to work. A country proroguing parliament illegally here, trying to break international law there.’
The dislocation between the heady claims of political language and the mundane realities of political substance: ‘we became a country in which there was only the mock heroic – a “world beating” country that would “strain every sinew” and give “cast-iron guarantees” while bungling its plans and breaking its promises. A country “ready to take off its Clark Kent spectacles” and act “as the supercharged champion” of X, Y, Z. A country on stilts – pretending that we had a test and trace system that was head and shoulders above the rest of the world.’
The nature of the campaign for Brexit and the insincerity of Boris Johnson’s role: ‘the likes of Iain Duncan Smith, David Davis, Steve Baker, Nigel Farage, Mark Francois, John Redwood, Gisela Stuart, Kate Hoey et al – were never more than a dim congregation of rude mechanicals. And what they required to win was someone who instinctively understood how to conduct a form of protracted public masque.’
And so on.
Docx’s depiction of the character and approach of the current prime minister is unmatched.
Falstaff, the Fool, the Clown, has indeed taken over as king.
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At the end of Docx’s article, however, he posits that there are hard challenges that cannot (easily) be avoided by the clowning prime minister:
‘The difficulty for the clown is that once truth and seriousness have been merrily shattered, they cannot be put back together and served up anew. Or, to put it another way, the buffoon who has just entertained the audience by smashing all the plates cannot now say that he proposes to use them to serve up a banquet in honour of himself becoming a wise and honest king. Everyone can see: the plates are all in pieces on the floor.’
One of these challenges is more policy than law – the many serious failures of the government United Kingdom in respect of the Covid pandemic.
Here Docx points out that Johnson is now seeking to tell a story so as to lift him out of any culpability:
‘Are we supposed to forget this legacy and “move on”? That is what Johnson is now tacitly suggesting. Like all storytellers, he knows the public remember endings, less so beginnings and seldom the middle. He did all he can, he says. He knows it’s not true, but that is what he is selling.’
Here Docx appears to be doubtful of his own plate-smashing analogy.
People may elect not to see the damage: Johnson can – and may well will – distract us by more plate-smashing: world-beating plate-crashing, no doubt.
The other challenge, however, is squarely constitutional.
And that is the future of the union.
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Docx rightly observes that there is a pending constitutional crunch: ‘the realm really is still falling apart. Johnson’s predicament could not be more starkly illuminated than by the next existential challenge he faces: to do with the very nature of the union of England, Scotland, Wales and Northern Ireland.’
Johnson’s predicament here affirms the truth of the old Hebrew proverb about the difference between a clever person and a wise person: a clever person can get out of situations that a wise person would not get into.
The lack of wisdom here, however, is not that just of Johnson.
The folly of the in/out referendum was that of David Cameron, and the infliction of a ‘hard Brexit’ (with the United Kingdom outside the European Union customs union and single market) was by Theresa May.
Wiser heads – who realised the precariousness and fragility of constitutional arrangements – would not have risked the future of the United Kingdom, as Cameron did, on one turn of pitch-and-toss.
Nor would they have insisted on an extreme form of Brexit in the first few months after the referendum, as May did.
Johnson was not responsible for either of those two calamitous decisions, which in turn have created what Docx rightly calls the ‘existential challenge’ of keeping the union together.
The fool may have become prime minister – but only after the two previous prime ministers had made the most foolish of decisions.
And given those foolish decisions – and their necessary implications for the position of Northern Ireland – then there is not a great deal that Johnson can do.
The clown has not so much taken over the stage: it is more that supposedly wiser rulers have left the stage to the clown alone.
And, of course, Johnson will approach the problem with his strategic dishonesty and tactical buffoonery – but, frankly, what else has he got?
The constitutional logic of the Brexit that was in place before he became prime minister will continue to unfold.
Slapping sticks is perhaps all that is left.
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All this said: never underestimate the trickster.
A clever person may be the one who gets out of situations that a wise person would not have got into – but the clever person may still do so all the same.
And as Docx avers: ‘the clown is always in a deeper relationship with the audience than with his ostensible subject.’
The plates that may now smash will be as big as the union itself.
The United Kingdom of Great Britain and Northern Ireland may not last another few years in either form or substance.
But the clown-king may still be able to get away with it – and still be prime minister of whatever is left, with claps and cheers for more.
The audience may never see or care what damage is done in the meantime.
And this is not just because of the skills and talents of the clown-king but because of the stage we are now at in the story of Brexit and the United Kingdom – to use a phrase of Johnson’s earnest antonym as prime minister – there may be no real alternative.
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“Will it please you to see the epilogue, or to hear a Bergomask dance between two of our company?”
– Act V, Scene 1, A Midsummer Night’s Dream
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And for seventy years the offence was hardly noticed, though it was reenacted from time to time as telecommunications legislation was, ahem, modernised and simplified.
Then in 2003 it was reenacted yet again, but in terms that (without any proper consideration) ended up covering the entire internet:
But it was still not really noticed.
Until one day some bright spark at the crown prosecution service realised the provision’s broad terms were a prosecutorial gift in the age of social media.
In allowing the appeal against conviction, the lord chief justice said:
In other words: the intention of the 2003 reenactment had not been to widen the scope of the offence in respect of fundamental freedoms.
(Declaration of interest: I was the appeal solicitor before the high court in that case.)
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Coming back to clause 59, it may well be that the intended effect of clause 59 is to merely restate the existing law.
Some are convinced by this view:
This is particularly so when the Bill is explicitly restating the common law. I would expect the Courts to apply the old caselaw to the new, statutory offence.
— Yet Another Tweeting Barrister (@TweetingYet) March 20, 2021
But.
What we will have, once enacted, will be an offence – that is, an arrestable and chargeable offence – which, on the face of it is in extraordinary broad terms, using such everyday language as ‘annoyance’.
It may be that the higher courts will, as any appeals come in, apply the technical meaning in property law of ‘annoyance’.
The law in practice is not that (only) of the judgments of the high court and above: it is what police officers and crown prosecution service case workers believe the law to be and see the law as it is set out.
It is also can be what zealous complainants to the police say it to be.
And none of these people will – understandable and perhaps rightly – be well versed in the case law of ‘annoyance’ in respect of the old law of public nuisance.
They will just see an arresting and charging power – and a power to set conditions.
So it should not be left to the courts ‘to apply the old caselaw’.
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Criminal offences – and their limits – need to be clear and precise to everyone involved: citizen, complainant, arresting officer, crown prosecution service case worker, busy junior legal aid solicitor giving advice on plea – as well as to erudite barristers and even more erudite judges.
And so: even taking the point about this being a mere modernisation and simplification at its highest, clause 59 currently contains worryingly wide drafting.
Most people reading clause 59 by itself will believe there is a criminal offence – with a sentence of up to ten years – for causing mere annoyance.
Even if that it not the government’s intention, that is how the current provision can be read.
And because of this, people may suffer the life-changing events of being arrested and being charged – and may even plead guilty.
Unless, of course, that is the government’s real intention.
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It did not seem a promising move: just an attempt by the government to find cover for an assault on judicial review by means of a hand-picked commission.
But.
It is sometimes strange how things turn out.
The commission has now reported – and just a skim of the report shows that the government did not get the report it was hoping for.
In large part, the report appears to be an affirmation of the current position of judicial review – with minor changes that it is hard to feel strongly about.
(A close read of the report may dislodge this happy impression – but that is this blog’s preliminary view.)
The concluding observations of the report could have even be a post on this very blog:
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In receipt of the report, the Ministry of Justice decided that it would try harder to find people to tell them what they wanted to hear.
We want to keep this conversation going.
That’s why we’re launching a public consultation to explore further measures informed by the panel’s analysis.
Like a frustrated news show producer who cannot find any talking-head expert to say the desired things, the Ministry of Justice is now resorting to a Vox Pox.
The discrepancy is between the heady rhetoric of ‘activist judges’ – a rhetoric that has a life of its own – and the mundane reality of what actually happens in courts.
The commission, to their credit, looked hard and reported on what they saw.
Yet those Ministry of Justice, to their discredit, want to keep on until they are told what they want to hear.
Perhaps the Ministry of Justice will get what they want – and then move to limit judicial review.
One can never be optimistic about law and policy for very long, and the illiberals and authoritarians are relentless.
But this report is a welcome break from the push towards populist authoritarianism in our political and legal affairs.
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Earlier this week the house of commons passed the government’s illiberal Police, Crime, Sentencing, and Courts Bill with a ninety-six majority.
So given this high majority the obvious question is what would actually stop or hinder a populist and authoritarian government from seeking to pass primary legislation that would remove or undermine basic legal protections and rights?
This is not a trivial or academic question.
The usual ‘gatekeepers’ that would prevent a government from not even proposing such things are no longer in place.
For example, the offices of lord chancellor and attorney-general are occupied by politicians who happen to be lawyers but have no credentials in protecting either the rule of law or fundamental freedoms.
And we have a government heady with ‘will of the people’ rhetoric that has developed a taste for attacking or disregarding what checks and balances the constitution of the United Kingdom has to offer.
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In constitutional theory, the next check – once legislation is proposed – is the house of commons.
But with such a large majority – and the tendency for even supposedly ‘libertarian’ government backbenchers to vote in accordance with the whip and accept limp front-bench assurances – there is no realistic way that the house of commons is any check or balance on this government.
And if the opposition do oppose – which cannot be assumed, given the official opposition’s habit of not opposing things for tactical and strategic reasons – then such opposition can and will be weaponised by hyper-partisan ministers and their media supporters.
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Next there is the house of lords, where (fortunately) the government does not have an in-built majority.
And the house of lords can vote things down and pass amendments.
But.
When constitutional push comes to political shove, the house of lords will usually backdown once the house of commons has reaffirmed its support for a measure.
This is in part that the the house of lords has a, well, constitutional disability in respect of confronting the democratic house.
There will only be a few occasions where the house of lords will use its power to delay legislation under the parliament acts.
And that power is that: to delay.
A determined government, with the support of the house of commons, will get its legislative way in the end.
There are a very few exceptions to this: such as a bill containing any provision to extend the maximum duration of a parliament beyond five years.
But otherwise: there is nothing that can ultimately stop an illiberal bill eventually becoming an act of parliament.
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And then we come to the courts.
Here we have another problem.
Because of the doctrine of parliamentary supremacy there is nothing that the courts would be able to do – as long as the government has ensured that the statutory drafting is precise and tight.
The human rights act, for example, provides no legal basis for an act of parliament to be disapplied.
The judgments of the European court of human rights are not binding.
The European communities act, which did enable a court to disapply an act of parliament on certain grounds, is no longer part of domestic law.
‘Common law rights’ capable of frustrating an act of parliament exist only in undergraduate law student essays.
Even with the powers the courts do have, the government is seeking to limit access to judicial review by all possible means: in substantive law, by procedural restrictions, and by denying legal aid.
Before the general election of December 2019 we had the unpleasant predicament of a government that was populist and authoritarian – but at least it did not have a parliamentary majority.
Now, by reason of that general election and its result, we have a government with the same illiberal instincts but with all the sheer legal force of parliamentary supremacy at their disposal.
That the opposition parties facilitated an early general election in December 2019 was a moment of political madness.
And now – until at least December 2024 – we have a government that is able with ease to get the house of commons to pass the most illiberal legislation – and there is ultimately nothing that either the house of lords or the courts can do – as long as the legislation is precise and tight.
Brace, brace.
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The problem of political language not being tied firmly to particular meanings is not a new one:
‘From where Winston stood it was just possible to read, picked out on its white face in elegant lettering, the three slogans of the Party:
WAR IS PEACE
FREEDOM IS SLAVERY
IGNORANCE IS STRENGTH’
Indeed, it is no doubt a problem as old as political discourse itself.
But the fact that it is not a novelty does not make it any less irksome.
And nor does it mean that its instances should be left unremarked.
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Currently there is a severe dislocation between political words and things.
Those ‘free speech warriors’ who decry ‘cancel culture’ often seem at ease with a government putting forward legislation that is capable of prohibiting any form of effective protest.
There are also the ‘classical liberals’ who commend ‘free trade’ who are in support of Brexit, which is the biggest imposition of trade barriers on the United Kingdom in modern history – and has even led to a trade barrier down the Irish Sea.
And there are the champions of the liberties under Magna Carta and of ‘common law rights’ who also somehow support restrictions on access to the court for judicial review applications and sneer at imaginary activist judges.
Like a gear stick that has come loose, there seems no connection between the political phrases and the policy substance.
But the phrases are not meaningless – they still have purchase (else they would not be used).
The phrases are enough to get people to nod-along and to clap and cheer.
It is just that they are nodding-along and clapping and cheering when the actual policies then being adopted and implemented have the opposite effect.
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Can anything be done?
An optimist will aver that mankind can only bear so much unreality – and that people will realise they have been taken in by follies and lies.
That, for example, Americans will realise that politicians who seek support to ‘make American great again’ have made America anything but.
Or that those who said they would ‘get Brexit done’ have instead placed the United Kingdom in a structure where Brexit will be a negotiation without end.
Or there will be a realisation that a government is seeking greater legal protections for statues than for actual human beings.
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A pessimist will see the opposite – that the breakdown of traditional media and political structures (with traditional political parties and newspapers seeming quaint survivors from another age) – means that it will be harder to align words with meanings.
Meaning the dismal prospect of liberals and progressives having to also adopt such insincere approaches so as to counter and defeat the illiberals and authoritarians.
Whatever the solution, it needs to come rather quickly – at least in the United Kingdom – as the current illiberal and authoritarian government is in possession of a large parliamentary majority and is showing itself willing and able to push through illiberal and authoritarian laws and policies.
While pretending to itself and others that it has ‘libertarian instincts’.
And so it may not just be the gear stick which has come loose but also the brakes as well.
Brace, brace.
***
Thank you for reading this post.
If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both 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.
