Parliament is an event and an institution – but not a building

5th April 2021

Restoring the palace of Westminster is proving to be rather expensive.

This news prompts a thought about what is – actually – a parliament.

I happen to be a (non-militant) atheist but I have friends who are Christians who will say that a church is not a building but the people – and that a church can exists just as readily in people’s houses, or in the street, or over an internet zoom call.

A similar approach can be adopted to parliament.

The great historian of the Stuart period Conrad Russell averred that the parliaments of the seventeenth century were an event not an institution.

And this goes to the word itself – a parliament is where people, well parley.

As such, it can take place anywhere – and indeed parliaments have been held away from Westminster.

And parliaments have been held in different parts of Westminster.

It is only by sheer familiarity that we identify a parliament with a particular building.

But there is no constitutional reason why parliament has to sit in Westminster.

For example, take for example the preamble of an act of parliament:

‘Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—’

There is nothing in that introductory text which provides that the lords and the commons have to be sitting and voting in parliament.

(And, if you read the text carefully, you will also see there is nothing that says peers and commons need to have voted separately on the bill.)

So, just like a church, there is nothing which would ultimately stop a parliament meeting just as readily in people’s houses, or in the street, or over an internet zoom call.

It is, however, a measure of the sheer pressure of those dollops of Victorian nostalgia and surviving procedure on our political imagination that it is almost impossible to conceive of a parliament sitting anywhere else than that neo-gothic pile just by the Thames.

And it certainly seems beyond the political imagination of some members of parliament to conceive of their constitutional role and duties being capable of performance and discharge other than in the palace of Westminster.

Four hundred years later, it has to be be conceded that parliament now is an institution rather than just an event – but it still an institution that can manifest in a number of places and in a number of ways.

And not just in the palace of Westminster.

That so few parliamentarians can see that parliament is what one does, rather than where one is, is a cost to the rest of us of more than twelve billion pounds.

It is the cost of our parliamentarians confusing what they do for where they are.

If parliamentarians took parliament seriously, it would not matter where the parliament sat, as long as it could perform its role and discharge its duties.

Our constitution is in great part a creaking Victorian dysfunctional monstrosity – there is no need for parliamentarians to meet in one too.

***

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Four months after the end of the transition arrangements there is still no clear view of the future relationship between the United Kingdom and the European Union

4th April 2021

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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Happy 300th birthday, office of the Prime Minister – or is it?

3rd April 2021

Happy birthday, office of the prime minister.

Well, almost.

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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Beware the excuse of ‘the king’s evil counsellors’

2nd April 2021

Every so often with Boris Johnson as prime minister there will be, in effect, the excuse of ‘the king’s evil counsellors’.

This useful excuse means that the prime minister is not really culpable for his decisions, but somebody else on whom he relied.

For example: it may be in the form of ‘Boris takes control‘ news report – which, of course, suggests that those who hitherto had responsibility did so without the prime minister’s support or direction.

Or: it may be in the form of the Prime Minister ‘distancing himself’ from a report or a decision issued by Downing Street. 

In any case it is a form of plausible deniability – that is is one of the prime minister’s advisors or ministers to blame, and not the prime minister.

Johnson is especially adept at this evasion.

It means that somebody else is always to blame – and he can shake his head and affect to be innocent – he was merely advised badly.

That his ‘evil counsellors’ were at fault, but not him.

Beware.

 

 

 

 

 

Government communications – another departure from the notion of serving the public?

1st April 2021

There is controversy in the news today about central government communications

In particular, there is – correct – criticism that government press offices are generally unhelpful to those from the outside making the enquiries and too motivated by serving the political interests of the ministers of the day.

This, sadly, is nothing new – though it does appear to be getting worse.

This is, of course, a subjective and personal perspective – other commentators and journalists may have less frustrating – indeed happier – experiences.

But if the current criticisms – as affirmed by my own experience – are valid then the most likely explanation is akin to the view adopted by that police officer the other day.

You will recall the officer who insisted that the police were crown servants as distinct from public servants.

Press offices, ditto.

(Also freedom of information offices – but that is for another post.)

Government press officers seem to see their role as actively not providing information to the public and the press, but instead seeking to withhold information and misdirect media attention.

Unless a journalist has an already good relationship with a press officer, there is little or no point asking for anything useful from a press office.

This is why, for example, I prefer to work with public domain and open source information – and to spot connections and identify discrepancies.

Harder, slower work – but worthwhile.

This means I usually only go to government press offices in two situations.

First, if there is genuinely no other way I can obtain the information from public domain or open source material.

Second, if I need some specific thing verified (or rebutted) before publication – where I have worked that thing out by other means.

This approach means that there is little scope for a government press office to shape my writing and commentary – only to influence it, if at all, at the margins.

My approach here is not unique – and it is because government press offices are so adept at being (ahem) gatekeepers that they sometimes pay the price by not being involved in reports and commentary, other than perhaps to provide a statement or not.

Tight media management can only achieve so much.

This is not the only way government press officers are being avoided – as ministers and ministerial special advisers build up their own direct trusted relationships with political journalists.

And so government press offices – although they seem to be expanding in size – are also being squeezed in substance.

Employing more and more people to say less and less.

Government comms disappearing into a hole of its own creation.

And in the meantime, the notion of a government press office being there to serve and inform the public becomes a smaller and smaller speck in the law and policy sky.

***

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The life and death of Smiley Culture – who died ten years ago this month during a police raid – and what happened next

 31st March 2021

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.

*

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.

The jury’s verdict is here – on a page written about the case by the barrister for the family, Leslie Thomas QC.

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.

She was quoted as saying:

 ‘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.

As Thomas set out:

‘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.’

*

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.’

*

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:

Here it is, line 208 in a table in the chief coroner’s report:

This accords with the Surrey address and the date, and so presumably is indeed the recommendations made by the coroner.

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Smiley Culture was just one of hundreds of people who have died in police custody or during contact with the police.

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.

Here is the FullFact analysis of the lack of prosecutions.

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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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***

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The problem with the United Kingdom is not a lack of a ‘written constitution’ but the lack of constitutionalism

30th March 2021

This is just a quick post to draw together a couple of points in my law and policy commentary that appear to some people to be contradictory.

On one hand, this blog and my commentary elsewhere relentlessly point out the constitutional failings and trespasses of this government – especially the propensity of current ministers to evade or remove checks and balances.

On the other hand, I am not a fan of a codified constitution (popularly though misleadingly called a ‘written constitution’) and can indeed be quite dismissive of those who contend it is a panacea for our political ills.

How can I be one and not the other?

Usually my first response is to aver that any written constitution would be more likely than not to entrench executive power – especially one which was introduced while the government had a high parliamentary majority.

But there is a second reason which I should perhaps emphasise more – especially when the knee-jerk accusation is that any legal commentator is legalistic – and that is that there needs to be a change in political culture.

‘Constitutionalism’ means taking constitutional rules and principles seriously in any given political circumstance – that things should be done or not done in a certain way because constitutional rules and principles matter in and of themselves.

One can have constitutionalism within a political system without a codified constitution – indeed the lack of codification arguable makes the following of basic constitutional precepts more important in political action.

And in the United Kingdom, there have been constitutionalist politicians in all parties.

The merit of constitutionalism is an acceptance and appreciation that there will be tensions between the elements of the state and that there are certain ways in which these tensions can and should be addressed before they harden into conflicts.

Without the political culture of constitutionalism, however, there is no point in having grand words in a codified constitution.

In the current politics of tribalism and hyper-partisanship – especially where the government wishes to eliminate all checks and balances – what is needed more than ever is a sense of constitutional propriety.

Some may aver that constitutionalism would be a happy consequence of a codified constitution – though the recent example of President Trump in America perhaps indicates that even with codified constitution there can be rampant anti-constitutionalism.

The revival and promotion of constitutionalism, however, would require political leadership –  for leading politicians to insist there are principles and rules that are distinct from the partisan self-interest.

And writing in early 2021, such a shift in political culture seems as remote as any codification.

***

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‘We are not public servants’ and ‘policing by consent is not a duty’ – the disturbing and telling views of a police officer

27th March 2021

Here is a tweet.

The tweet purports to be from the chair of the Gloucestershire branch of the Police Federation.

This description must be true, because a tweet from that account was RTd just hours before by the account of the Gloucestershire Police Federation – and it can be assumed that they would not RT an imposter.

And that, in turn, is the account of the Gloucestershire Police Federation as it is directly linked to at their website (top right).

So, yes, it is a real tweet.

A real tweet by a real chair of a real police federation.

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Having established the tweet’s authenticity, let us now look at its content.

The tweet states that the police are not public servants.

More exactly that ‘technically’ the police are not public servants.

As there is no ‘technical’ definition of the term ‘public servant’ this is a nonsense.

That a police constable is a servant of the crown – as are many civil servants – does not mean that they are also not public servants.

Crown servants – and others employed by the state in whatever legal form – are public servants.

Now look at the context of the tweet – it is intended as a correction in reply to a fair comment that the police should serve the public, not the government.

The reply denies that this is the case.

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But not only does this tweet deny that the police are public servants – it also frames the concept of ‘policing by consent’ as a ‘general principle’ but not a ‘duty’.

Here the tweeter errs again.

If one actually reads the once-famous Peelite principles of policing, you will see this as the second principle:

‘To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect.’

Indeed, each of the principles is set out as an express ‘instruction’ to constables: ‘to recognise’, ‘to maintain’, ‘to use’ and so on.

As such each of the principles is also a duty – and this is because – ahem, technically – a duty can also be a principle, and vice versa.

Especially when they are expressly framed as such, as they are in that formal definition of ‘policing by consent’.

But for our tweeter, these express instructions can be defined out of from having any actual application because they are only ‘principles’.

This, like the tweeter’s other distinction, is itself worrying and telling.

Policing by consent is not an optional nice-to-have in modern society – it is foundational.

That it can be expressly stated to not be a duty – notwithstanding the actual words of the instructions – is a disturbing insight.

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Perhaps the tweet was a just a slip, not to be taken seriously.

(Though, remember the police themselves are often not so forgiving of the slips of others.)

Perhaps there will be a clarification, or something.

Or perhaps the tweets provided an indication – an insight – into a mindset of certain police officers.

That not being public servants and that not policing by consent are both a quick distinction away from having practical application in the discharge of their important role in our society.

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You say you want a ‘written constitution’? Here are four online places where it is already written down.

26th March 2021

Whenever a constitutional wrong becomes apparent there is a reflexive demand for a ‘written [or codified] constitution’.

Having a written constitution, it would seem, would just make things better  – rather than, as is my view, probably make things just as bad but differently.

(On my scepticism about written constitutions as a panacea see my Prospect piece.)

But this post comes at the topic from a different angle.

Those who demand a written constitution often seem unaware that it is already set out in writing – if you know where to look.

And just as those who wish for a month of Sundays usually do not know what to do with a spare afternoon, those who pine for a written constitution do not read where the constitution is already set out in writing.

Here are four places where you can read the constitution of the United Kingdom online which you may or may not already now about.

Note, however, that each of these are practical rather than academic or theoretical materials.

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The first is the Cabinet Manual – which governments (of all parties) since 2010 have averred sets ‘out the main laws, rules and conventions affecting the conduct and operation of government’.

Of course, this is the government’s own view of the constitutional arrangements in which it operates – but it also is a comprehensive and clear overview of how the various elements of state are at least supposed to fit together.

You can click and read the pdf here.

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So much for the ‘high level’ constitutional summary – now we turn to how public bodies make (or should make) decisions.

Here we have a wonderful publication published for government lawyers called ‘the Judge over your shoulder’ – which is described formally as ‘guidance to help you understand the legal environment in which government decisions are made and assess the impact of legal risk’ – and is described informally as pretty much a god-send.

This publication set out how decisions and actions by public bodies can be rendered ‘judge-proof’ – that is lawful – and it is updated from time to time.

You can click and read the pdf here.

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We move on now from the executive to the legislature, that is parliament.

The key text for understanding what parliament can and cannot do – and the text of which can make a real difference at important political moments – is known as “Erskine May’.

More formally ‘a treatise on the law, privileges, proceedings and usage of parliament’ – this document was for a long time (indeed for far too long) only available to those who knew of its existence and could afford the prohibitive hundreds of pounds that it cost to purchase in hard form.

Such inaccessibility was an outrage – and so it was a boon when the entire text was placed online.

You can click and read it here.

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And now, finally to the judiciary.

In particular to the the power of the courts to review (and sometimes quash) both government decisions and even statutory instruments made under acts of parliament (but not the acts of parliament itself).

The ‘Judge over your shoulder’ gives the government’s view – but to see it from the perspective of the courts (of England and Wales) you need to know about ‘Part 54’ of the civil procedure rules – and its attendant practice direction.

This is, of course, written in legalese – but they also provide an understanding of how the courts would go about holding the other elements of the state to account.

A grasp of what it actually means when you read that ‘the government has been taken to be court’ is invaluable to anyone following the tensions between ministers (and other public officials) and the judges.

You can read Part 54 here and its attendant practice direction here.

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Of course, these are not a substitute for a codified constitution – but they do set out in writing what – at least – should happen in the constitutional affairs.

Enjoy clicking and reading.

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The performative nastiness of the Home Secretary

24th March 2021

The office of home secretary is one that often does not bring the best out of its occupants.

Indeed, for a while the phrase ‘former Labour home secretary’ was one of the most illiberal phrases in the political lexicon.

Once could think of exceptions – Roy Jenkins, of course, and to a limited extent William Whitelaw and Douglas Hurd (though the latter two only seem more ‘liberal’ by comparison).

On the whole, however, just as certain experiences bring out the worst in human nature, being home secretary can bring out the worst in any politician.

But.

At least former home secretaries had the grace to pretend otherwise.

Remember the grave sorrowful face of, say, Jack Straw as he solemnly warned of the need of some ‘tough new measures’ – enticing you to nod-along with his sense of national emergency.

And Theresa May as home secretary even once stunned the police federation with a full-on speech about police reform.

In essence: the home office was a tough-old job, but some politician had to do it.

But what home secretaries did not do – at least not in public – is revel in the capacity of the office to cause harm and upset.

And so we come to the current home secretary.

Today’s news is typical of their approach:

Before May was home secretary there was a famous conference speech – framed in cautionary terms – about the Conservative Party becoming the ‘Nasty Party’.

For the current home secretary that speech has instead become a manifesto.

And as someone has averred on Twitter, this is not exceptional to the United Kingdom:

The Cruelty Is The Point.

(See here.)

What an unpleasant vista this is on our current politics.

The important thing to note, however, is not so much (yet) that the powers and objectives of the home office have profoundly changed.

These are just about the sort of policies that other home secretaries may have adopted – and not only Conservative politicians.

What seems novel (at least to me) is the sheer glee which accompanies the announcement and promotion of each policy announcement.

One shudders to think what the current home secretary would do publicly if the office still have the power to (not) commute a death penalty.

And rhetorical change can have substantial consequences: each great office of state is subject to and can shape public expectations – that the chancellor, for example, can and will do things in respect of the economy generally, and with taxation and spending in particular.

The more the home office is loudly deployed as a vehicle for nasty policies, presumably the more the demand for more such policies.

And so the approach of the current home secretary cannot be written-off as just vile verbiage: it may and perhaps will lead to more repressive policies.

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All this is an example of a more general problem with the current political arrangements of the United Kingdom.

The lack of political and constitutional self-restraint – and the removal of the gate-keepers.

There has never really been anything before – other than custom and decency – that has prevented a home secretary exploiting their office in this way.

Just as there was nothing which stopped the prime minister from using the prerogative powers in various unfortunate and unwise ways.

What the home secretary and some other ministers are now doing is showing openly what the constitution of the United Kingdom has long been capable of permitting.

And so what is demonstrated by this exercise of performative politics is not just the politics of the current home secretary – but that there is nothing in place that can prevent such things.

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