Category: United Kingdom Law and Policy

Why today’s deportations to Jamaica are nothing for the Home Secretary to be boastful about

2nd December 2020

There are many illiberal and misconceived things going on that a blog like this, which offers commentary and context on just one law and policy thing a day, cannot keep up.

But one especially brutal and unfortunate thing is to take place later today.

There is set to be a deportation flight from England to Jamaica, which will take place notwithstanding the ongoing covid pandemic and in the run-up to Christmas.

Those being deported are people with criminal convictions who have served their sentences but, because they are (in some cases only technically) foreign nationals, they are now to suffer this further sanction of the state.

The deportees include those with families and children in the United Kingdom – and so the Home Office are depriving children of parents and partners and other dependents of potential breadwinners.

The deportees include those who came to the United Kingdom as children and have no real connection with Jamaica.

One aspect of this deportation that is especially worrying and distasteful is the sheer glee that the current Home Secretary and it seems Home Office officials are taking in this exercise of sheer state power.

‘We make no apology…’ are the first four boastful words of the Home Office statement.

The Home Secretary herself is using this to make party political points.

 

There is no sense of ‘more in sorrow than…’ and that it is unfortunate but somehow must be done.

Instead, Home Office politicians and officials seem to be revelling in it, with the attitude of ‘look what we can do’.

They also appear to want as many legal interventions as possible, so that they can have the added bonus of pointing to meddlesome ‘activist’ lawyers.

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The impression the affair gives is not one of reluctant necessity but that this is a propaganda stunt – and one which comprises detaining people, marching them in handcuffs, using coercive power to send them to countries that are not their homes, and inflicting damage to innocent children and families.

Again, during an emergency pandemic and in the run-up to Christmas.

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The justification that the Home Office politicians and officials will give to themselves and others for this is that the criminals brought it upon themselves, and so the politicians and officials are absolved from any blame.

Yet this deflection is not convincing.

First, it is not justice to inflict double or disproportionate penalties – all because a crime has been committed, that does not mean ‘anything goes’ for the state in retaliation.

Second, this is an exercise of discretion by the Home Office – a deliberate choice, not an automatic process.

And so the Home Office is choosing to prioritise deportations above the very real effect of depriving families and partners – and remember, the families, dependents and partners have not committed any crime but they will suffer and be damaged anyway.

Third, it is notable that there seems to be no trumpeting by the home office of deportations to other commonwealth countries such as Canada, New Zealand and Australia – and this is perhaps for the obvious reason.

Fourth, the Home Office policy of the hostile environment and its treatment of Windrush families demonstrates that it is not well placed to make sensible decisions in respect of families from the Caribbean – and it would be wise for the Home Office to step back from such coercive moves as this deportation until it gets a wider policy grip.

And fifth, to the extent that those convicts who have been released from sentences remain ‘dangerous’ then the question must be why they have been released from prison.

*

This deportation is an ugly spectacle, and it is one which nobody involved can take pride.

And the fact that there will be those who nod and clap and cheer at this brutal exercise of sheer state power tells us more about our society than anything about the families that are about to be forcibly broken up, so that the Home Secretary can tweet her party political ‘owns’.

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How Brexit may lead to Scottish independence and Irish unification

1st December 2020

So familiar is the three-word phrase ‘the United Kingdom’ that it can be forgotten that it does not name any particular country.

It is instead a description of dry and abstract political arrangement – the kingdoms that are (somehow) united could be anywhere on the globe.

Of course, the term is short for ‘the United Kingdom of Great Britain and Northern Ireland’ – but the shorter form is more common.

It is worth pausing and thinking about the phrase, as it reminds us that the United Kingdom is itself a political union, as much as the European Union or the Union of Soviet Socialist Republics.

And political unions come and go: there is no inherent reason why any political union is permanent.

*

This post is prompted by a tweet yesterday from the Conservative leader in Scotland.

The sentiment of the second sentence of the tweet can, however, be applied to another example of ‘independence’.

https://twitter.com/davidallengreen/status/1333459489383649282

And this will be a recurring problem for British Conservative politicians in opposing Scottish independence: the arguments they deployed in respect of Brexit and against the European Union can be re-fashioned in turn by those in favour of dissolving the United Kingdom of Great Britain and Northern Ireland.

*

For what it is worth (and it is not worth much as someone writing from England), I happen to support both Scottish independence and an Ireland united by consent.

This is not because I am anti-English and a rootless cosmopolitan, but a recognition that, in the end, all political unions will tend to come and go.

And although I dislike all forms of nationalism (which often tend to be illiberal), self-determination is very much a liberal value.

The people of Scotland and of Northern Ireland (and of Wales) should decide on their own political arrangements.

The United Kingdom is not necessarily a permanent arrangement.

Indeed, but for events before the Norman conquest, England itself could have carried on for many centuries being a geographic expression with a collection of smaller kingships (Wessex, Mercia, Northumbria), just as Spain did until the early modern period, and Italy and Germany did until the nineteenth century.

‘Great Britain’ itself – a combination of the union of the English and Scottish crowns and then of parliaments 1603 to 1707 – has no greater claim for political permanence than, say, the combined role of the British monarch being also the Elector of Hannover (which lasted from 1714 to 1837).

(On ‘Great Britain’ being a construct, it is worth reading – or at least knowing about – Linda Colley’s Britons: Forging the Nation 1707–1837.)

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But liberal arguments may work both ways.

The liberal principles of internationalism and self-determination can often be used both for and against any particular attempt at political union – for example, an independent Scotland (having exercised self-determination) will seek to be part of the European Union.

The European Union itself has no claim either to permanence, and it may one day join a list of historical attempts at unifying Europe.

Brexit and the recent political events in Poland and Hungary are an existentialist challenge to the European Union, which it may or may not survive.

The point is that no political structure is necessarily eternal.

Many once thought the sun would never ever set on the British Empire, before its fairly rapid dismantlement after the Second World War.

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There is also a plausible argument that it was only membership of the European Union of both the United Kingdom and Ireland that enabled the peace process in Northern Ireland to work and the Good Friday Agreement to be put in place.

Take away the European Union and that handy practical solution becomes unstuck.

*

So one particular irony that may come from Brexit is that the so-called Conservative and Unionist Party – by its absolute insistence on forcing through departure from the European Union – may be instrumental in breaking up the union of England, Scotland, Wales and Northern Ireland.

An independence referendum in Scotland and a border poll in Norther Ireland are both now more likely than not in the next few years – and both may well go against being part of a United Kingdom.

And that would be an exercise in ‘taking back control’ – just not the ‘taking back control’ that Brexiters perhaps had in mind.

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In one month the stabilisers are set to be removed from the Brexit bicycle

30th November 2020

Today is the last day of November and in one month’s time, on the last day of December 2020, the Brexit transition period is set to end – by automatic operation of law.

The stabilisers will be coming off the Brexit bicycle.

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The United Kingdom formally departed the European Union on 31 January 2020.

It has not now been a Member State for ten months.

But the effect of ceasing to be a member was artificially delayed by a transition period that was to last until at least 31 December 2020.

This transition period meant that, with some minor exceptions, the substance of European Union law and policy would continue to apply in respect of the United Kingdom even though it was no longer actually a member.

There was the possibility of extending this transition period until the end of next year – which would have been sensible not least because of the ongoing impact of the coronavirus pandemic – but the United Kingdom chose not to seek such an extension, and the formal deadline for that extension is now passed.

There is still, perhaps, a possibility of a formal extension even now – it would not be legally or procedurally easy, and it would need the urgent goodwill of all the European Union Member States – but this is increasingly unlikely.

And so, unless something exceptional happens, the United Kingdom will leave the transition arrangements at the end of next month.

*

The next issue is whether there will be an agreement (or agreements) in place between the United Kingdom and the European Union in respect of trade and other matters.

There is already an exit deal in place between the European Union and United Kingdom, which is (supposedly) binding on the parties – and it is this agreement which was freely and knowingly entered into a year ago that the United Kingdom government is now seeking to breach with its proposed internal market legislation.

But that exit deal was primarily for certain tidying-up matters in respect of the departure, rather than the general ongoing relationship (though some provisions regarding Ireland were intended to have lasting effect).

With one month to go – and with no time for proper scrutiny and possibly no time even for ratification – there is still no agreement in place on the ongoing relationship.

It appears one issue is fish and fisheries policy – but it would seem there is still not agreement on far more fundamental issues such as governance of the agreement (that is, what happens when things go wrong or a party breaks its word) and the ‘level playing field’ (that is, will both sides have enforceable and equal standards against the other for commercial activity).

Governance and the ‘level playing field’ are not minor issues, but go to the very heart of any future relationship.

The various antics of United Kingdom government – not just limited to the internal market legislation – have made the European Union nervous about governance – and as has been said, trust is good but law is far better.

The United Kingdom should have spent these last few months showing the European Union – and other potential partners for trade agreements around the world – that it could be trusted to abide with international agreements.

But instead the United Kingdom has, at this most critical of times, shown the opposite – and so has created a needless but major moral hazard.

What serious potential international trading partner would now trust the United Kingdom to keep its word?

And in respect of the ‘level playing field’, the European Union is also – and again understandably – nervous about United Kingdom ministers unilaterally reneging on agreed and enforceable commercial standards in the name of ‘sovereignty’.

Because of all this, there is a non-trivial risk of there not being any formal commercial relationship in place for 1 January 2021.

And there is certainly no reason to expect the European Union to sign up to a deal out of charity or pity or otherwise against their interests – especially as current and future trading partners of the European Union are all looking on too.

*

There are still, nonetheless, many favourable conditions for a deal – the parties are still speaking, there is agreement on the majority of the legal text, the parties both have an interest in a deal, and both parties would benefit from a deal.

But all these conditions are not enough if there is not actual agreement on fundamental issues.

So we come to the final month of the transition period, where the end-of-year holidays mean even less working time available to finalise a deal, during a pandemic and amidst forecast of a severe economic downturn.

There is no deal in place.

And even if there will be a deal in place by the end of next month, the general situation and outlook is not good.

This is perhaps the worst time for the stabilisers to come off the bicycle.

Brace, brace.

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Jeremy Corbyn and the odd-looking application for pre-action disclosure

27th November 2020

In the Guardian there is a report about a rather odd application by former Labour party leader Jeremy Corbyn to the High Court.

The relevant parts of the report, by the respected political correspondent Jessica Elgot, are:

‘Jeremy Corbyn is to start a formal legal claim against the Labour party for suspending the whip, in a case which allies of the former Labour leader say is intended to prove there was a deal with Keir Starmer’s office to readmit him to the party.

[…]

Corbyn’s lawyers lodged a pre-action disclosure application to the high court on Thursday night. “All of this will be in the public domain soon,” one source involved in the discussions said.

[…]

It is understood Corbyn’s legal team are attempting to put in the public domain evidence of what the former Labour leader will claim was a deal…

[…].’

Taking these passages together, it would appear:

(a) there is not yet a legal claim by Corbyn but a legal claim is envisaged between Corbyn and the Labour Party;

(b) a purpose of the legal claim is ‘to prove there was a deal’;

(c) there has been a request by Corbyn to the Labour Party for disclosure of documents which has been refused (as you usually need to directly request disclosure first before you resort to making a court application);

(d) an application has been made to the High Court for ‘pre-action disclosure’; and

(e) the purpose of that disclosure is to place documents into the public domain.

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For the following reasons the reported application does not make sense.

And the third reason makes the reported application seem rather odd indeed.

(Here it should be noted that the disclosure of the letter or its content to a political correspondent may have been done either by the Corbyn team or by the Labour Party, who would have been party to the correspondence and, as I set out below, we may not have all the relevant facts.)

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First, it is not obvious from the news report what the potential legal claim is by Corbyn against the Labour Party. 

To bring a legal claim requires Corbyn to have a ’cause of action’ – for example, for breach of contract or something else.

With no cause of action, there can be no possible proceedings, and with no possible proceedings there cannot be an an application for pre-action disclosure.

No possible action, no pre-action.

*

Second, it is also not obvious how suspension (and restoration) of a parliamentary whip can be an issue for judicial determination – and on the face of it, such a claim would mean a court being asked to impinge on a parliamentary matter.

It is especially difficult to imagine how there could be a judicial remedy, for example a court order, that would oblige the Leader of the Opposition to restore the whip to a Member of Parliament – and what the sanction would be if the Leader of the Opposition refused?

Further or alternatively, what would be the possible remedy in damages?

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In respect of both the two reasons above, the relevant part of the Civil Procedure Rules (the relevant rules of the court) for pre-action protocol provides that disclosure must (i) dispose fairly of anticipated legal proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs.

But if there is no viable or real cause of action or judicial remedy then there cannot be proceedings to be disposed of or be resolved, or any costs to be saved.

A request for pre-action disclosure is not a legal end in and of itself, and so if there is no underlying claim or feasible remedy, then it is difficult to see how a court can grant such an order.

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And now we come to the third reason why the news report is odd.

The pre-action disclosure of documents does not by itself place the documents in the public domain.

Here, the rule (CPR 31.22(1)) provides that:

‘A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where – (a) the document has been read to or by the court, or referred to, at a hearing which has been held in public; (b) the court gives permission; or (c) the party who disclosed the document and the person to whom the document belongs agree.’

And so the stated purpose of the application, according to the news report, is not permitted under the relevant rules of court.

Perhaps those who briefed the political correspondent did not know this, but there cannot be an application for pre-action disclosure where the purpose is to place documents into the public domain.

That would be an abuse of process, even if the application was otherwise sound.

If this is indeed the reason for the application then this application has been made for a wrongful purpose.

*

We have few reported facts on this claim, and so the above commentary is only provisional: further information could make it easier to understand the nature and purpose of the application.

But we can only go on the facts which Corbyn or the Labour Party (or those briefing on their behalf) place into the public domain themselves.

If those facts are insufficient for a proper understanding of the court application then that is hardly the fault of any reporter or commentator.

But on the the basis of the facts which Corbyn (and his team) or the Labour Party have chosen to make public, this application is odd and it does not add up.

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Pardons should be how mercy complements justice – but what happens when pardons undermine justice?

26th November 2020

There is a distinction – no doubt one of the oldest distinctions in the history of human societies – between justice and mercy.

The model is as follows:

– justice is (in part) about the appropriate application of general rules to particular cases;

– the application of justice in a particular case may result in an onerous sanction against an individual;

– there may be special circumstances where this onerous sanction should not be imposed on that. individual, even though this is what justice provides;

– and so an exercise of mercy will release that person from that sanction.

As such, mercy is a complement to justice, not a replacement for it.

A person may have done wrong, but they need not suffer for it.

The sin is still hated, but there is love for the sinner.

This, at least, is the model.

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The usual and best known means of exercising mercy is by way of a pardon.

The sovereign – or other head of the executive – makes a decree that in a particular case an individual should not suffer a punishment for their crime.

In the United Kingdom, the power to grant pardons is part of the royal prerogative (and is exercised rarely), and in the United States there is the constitutional power of the President to pardon in respect of federal crimes (and is exercised quite a lot).

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Pardons are curious things.

Let’s look at the word: to pardon someone is to forgive them and to receive a pardon means that you have been forgiven – and so to say ‘I beg your pardon’ is literally to ask for forgiveness.

(Only by usage and habit has it come to mean ‘say again’ – which is in effect an abbreviation of ‘I beg your pardon but can you please repeat that’.)

When applied to legal matters, a pardon is about forgiveness.

It is (or should be) about the sentence, not the offence.

As such it is (or should be) about mercy rather than justice.

And so here we come to a conceptual issue about pardons.

A pardon presupposes guilt.

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A pardon means (or should mean) that it is accepted or admitted that an offence has been committed – else there would not be a thing to forgive.

A pardon does not (or should not) expunge the offence.

This is why it possible for a convict to refuse a pardon (or to refuse to plead the pardon as a bar to any proceedings), if it is not accepted an offence has actually been committed.

To accept a pardon is to mean (or should mean) that the person accepts or admits that they committed an offence and that they accept official forgiveness. 

And so to offer a pardon is to, implicitly, accept that the conviction is sound but that the punishment should be forgiven. 

So should there be pardons for convictions when the law itself is wrong or unjust?

Would it not be conceptually neater for the convictions themselves to be expunged, rather than merely having the sentences forgiven?

(In 2013, I wrote about this at the New Statesman in respect of the posthumous pardon for Alan Turing.)

And there is also, of course, a more obvious problem with posthumous pardons: they are practically meaningless, as a dead person cannot be relieved of the sanction.

Posthumous pardons are mere gestures with no legal or practical effect, other than to make people still alive feel better.

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Pardons are topical because of the pardon granted by President Trump to Michael Flynn (the text of which can be read here).

But only those with short political memories will consider it exceptional that a President of the United States uses the power of pardon in a wrongful or controversial way.

Wrongful, controversial presidential pardons did not start with President Trump.

For example, on his last day of office in 2001, President Clinton granted 140 pardons, some of which seemed rather questionable.

And in 1974 President Ford pardoned President Nixon even before any criminal proceedings had been commenced, and without Nixon admitting any criminal offence.

The Nixon pardon was an odd thing from a legal perspective – you can read the text here.

The key text was that the pardon was ‘for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974’.

The ‘may have committed’ is remarkable: it in effect created retrospective immunity.

Nixon was, in effect, being given immunity from any prosecution for any federal offence for his presidency.

No specific offences were mentioned.

No guilt was admitted.

The Nixon pardon is an extraordinary legal document.

And it can barely be called a ‘pardon’ in any meaningful way.

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The classic model of pardons as only going to sentence, and not to criminal culpability is therefore an ideal which has sometimes not been matched in practice.

And so it is not unexpected that Trump seems to see pardons as not about forgiveness of offences but as, in effect, grants of criminal immunity.

Trump seems to want to use pardons as devices to place specific people above or beyond the law.

There is even the prospect that he will seek to (purport to) grant himself a pardon and in doing so, as with Nixon, he may not admit any criminal guilt.

(But there are limits to pardons: in the United States, a presidential pardon only protects against federal prosecutions, and so any State prosecutions would be unaffected.)

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The issue of the use and abuse of pardons is no doubt as old as the distinction between justice and mercy itself.

One problem will always be that there is a point where showing mercy to any significant degree defeats the purpose of law itself.

As such mercy ceases to complement justice but subverts justice instead.

Mercy will then not alleviate the excesses of the rule of law, but instead may undermine the rule of law.

And we may about to see this in action with Trump in the United States.

What Trump now does with his power to pardon before 20 January 2020 may exceed in scale what was done with the Clinton last-day pardons, and surpass in jurisdictional reach what was done with the pardon for Nixon.

Trump may be about to use the power of mercy to assault justice itself.

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Why the phrase ‘to enshrine in law’ is a fraudulent device

25th November 2020

Every so often the demand is made by a politician or someone in the media that a thing be ‘enshrined in law’.

The impression that they wish to promote is of absolute seriousness – that the thing will somehow be set out in law in a way that will ensure its preservation and enduring respect.

A super-duper way of using law.

But this is an untrue and misleading impression.

In the constitution of the United Kingdom, by reason of the doctrine of parliamentary supremacy, there is not a thing that can be ‘enshrined’ in law.

A thing set out in an Act of Parliament can be repealed and amended by another Act of Parliament.

Or a way can be found of frustrating or circumventing the statutory provision.

And often there is not even a need to repeal or amend, or to frustrate or circumvent, because there is no real enforcement mechanism for the enshrined thing.

The notion that a thing can be ‘enshrined in law’ is a fraud.

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To take a topical example, the International Development (Official Development Assistance Target) Act 2015 provides for a statutory target of 0.7% of gross national income is sent on overseas aid.

Section 1(1) provides:

“It is the duty of the Secretary of State to ensure that the target for official development assistance (referred to in this Act as “ODA”) to amount to 0.7% of gross national income (in this Act referred to as “the 0.7% target”) is met by the United Kingdom in the year 2015 and each subsequent calendar year.”

Looks impressive.

But.

But what section 1 provides is weak even on the face of the Act, as section 2(3) provides wide exceptions:

“(a) economic circumstances and, in particular, any substantial change in gross national income;

(b) fiscal circumstances and, in particular, the likely impact of meeting the target on taxation, public spending and public borrowing;

(c) circumstances arising outside the United Kingdom.”

And if an exception is invoked, the consequence of not meeting the target is that the government must try to meet the target next year, and so on.

Yet even these exceptions do not matter…

…as section 3 explicitly robs the entire duty of any legal usefulness whatsoever:

“(1) The only means of securing accountability in relation to the duty in section 1 is that established by the provision in section 2 for the laying of a statement before Parliament.

(2) Accordingly, the fact that the duty in section 1 has not been, or will or may not be, complied with does not affect the lawfulness of anything done, or omitted to be done, by any person.”

The duty supposedly ‘enshrined in law’ expressly has no legal effect.

‘Enshrined not in law’ would be more accurate. 

Yet politician after politician, and activist after activist, will parrot the line that the 0.7% spending commitment is ‘enshrined in law’ as if that actually means something in any legal sense.

(A similar thing happened with the various attempts to ‘enshrine’ in law the date of the departure of the United Kingdom from the European Union.)

*

A possible defence of the term ‘enshrine in law’ may be that it is a mere turn-of-phrase – verbal filler for those in politics and the media.

But this defence does not wash.

The term is invariably used to raise false expectations as to whether a thing will have enhanced legal protection – and as such it is a fraudulent device, as it will not.

And it leads to statutes being enacted, such as the the International Development (Official Development Assistance Target) Act 2015 that are nothing other than glorified press releases – and this is a misuse, even an abuse, of law.

‘To enshrine in law’ is a phrase which usually means the law is to be used for a non-legal purpose so as to mislead voters and readers (or listeners or viewers, depending on the medium).

*

By reason of the doctrine of parliamentary supremacy, it is impossible to ‘enshrine’ anything in law in any meaningful way.

Entrenchment is not available.

And by reason of parliamentary drafting, it will often be that the supposedly enshrined thing has no legal consequence.

There should therefore be a general prohibition on politicians and those in the media misleading others with the fraudulent device of saying a thing can be ‘enshrined’ in law…

…if there was only some way of entrenching such a ban.

**

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Biden, Brexit, and the politics of process

24th November 2020

Process is the friend of President-elect Joseph Biden.

As long as the States duly certify their votes, and the Electoral College then duly votes in accordance with those certifications, and Congress then duly accepts the Electoral College result, there is little Biden really needs to do so as to become President of the United States on 20 January 2021.

Unless something extraordinary happens, Donald Trump will cease to become President on 20th January 2021 by automatic operation of the Constitution of the United States.

Process is his friend.

There is, of course, still litigation and political pressure from the Trump campaign.

(And it is testament to the lack of confidence many have in the integrity and independence of the currently composed Supreme Court of the United States that many can easily imagine at least two or three of the Justices voting in favour of the side of Trump in any election case before that court, regardless of the merits of that case.)

None of the current litigation, however, really adds up.

Indeed, the lawyering in some of the cases brought by the Trump campaign has been unimpressive.

And even if each of these cases are taken at their highest, it is not conceivable that it would ‘flip’ the result in a single State, let alone the entire presidential election.

Understandably, many are still anxious as to whether Trump will really go, and are concerned that some grand litigation trick may keep him in the White House after 20 January 2021.

After all, many strange things have happened in the United States (and the United Kingdom) since 2016.

But here it looks like process will prevail.

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Process is the enemy – the negation – of the disruptive approach to politics of Trump and Bannon in the United States and of Johnson and Cummings in the United Kingdom.

That approach to politics prioritises mobilising a political base so as to enable those in political power to govern without checks and balances.

And as such, both politics and policy becomes a sequence of gestures, expediences and contrivances.

Process is an alien concept to this approach of constant disruption.

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Take, for example, Brexit.

In approaching the negotiations of the exit agreement and then of the subsequent relationship on trade, the European Union has been dull, methodical, and relentless.

The United Kingdom, on the other hand, has constantly sought to rely on bluster and bullying, but at each stage has been at a disadvantage.

Johnson and others prioritised playing to their political and media constituencies over engaging properly in a structured negotiation process.

They have received claps and cheers, but those claps and cheers have quickly faded and are becoming less loud and enthusiastic each time.

Process has been the friend of the European Union over Brexit, just as process is now the friend of Biden in the United States.

This is not to say that process was always going to favour the European Union (even though the Article 50 procedure is rigged against the departing Member State).

The United Kingdom can also be rather good at the politics of process, when its political leaders take process seriously.

But throughout Brexit, a distrust of ‘Remoaner’ expertise and experience meant that United Kingdom did not have the benefit of those who were the match to the procedural politicians of the European Union.

Think of Ivan Rogers, among many others.

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The populist nationalist authoritarian politics of Trump and Johnson, and of Bannon and Cummings, has shaken many liberals and constitutionalists.

Disapproval and tuttery has no effect; conventions are disregarded; inconvenient laws are circumvented and even sometimes broken.

It is akin to a wild animal loose in a village.

The unpredictability and noise and damage is unwelcome.

But, just as there are advantages for those who promote this destabilising approach to politics, there are also weaknesses.

And one of those weaknesses is that it cannot easily deal with process, if that process survives the attempts to disrupt it.

But.

The scary thing is when populist nationalist authoritarians master the political arts of process, rather than the lesser political arts of disruption.

We are (relatively) fortunate: Trump will soon no longer be in office; Bannon and Cummings are both no longer in central political positions; and Johnson now seems politically weak.

The next wave of populist nationalist authoritarianism in the United States and the United Kingdom may be harder to dislodge.

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It has never been easier to mass-shame politicians, yet never have politicians seemed so shameless: the constitutional implications of a modern political paradox

23rd November 2020

The internet and modern communications technology mean that it has never been easier to to mass shame those with political power.

Only twenty-five or so years ago it was virtually impossible for any person to publish anything critical about politicians without going through a traditional ‘gate keeper’ – you could write a letter to a newspaper, send a manuscript to a publishing house, or telephone a radio or television show.

But it was almost always a decision of somebody else if your critical views got wider circulation.

Determined people could, of course, publish their own pamphlets, or publish a book through a ‘vanity press’, or start their own pirate radio station in the English channel.

Such eccentricity, however, was relatively rare.

Now anyone with everyday electronic devices can publish their views to the world.

It has been an extraordinary development in the history of communications, akin in its significance to the developments of writing and then of printing.

(And a development the implications of which have perhaps not been fully worked through socially, culturally, or legally.)

But.

Alongside this development seems to have been an opposite and equal political reaction.

For, although it has never been easier to mass-shame those with political power, it appears that those with political power have never been so shameless.

As long as their (minority) political blocs are mobilised and committed, various populist politicians – from Trump and Bannon in the United States to Johnson, Farage and Cummings in the United Kingdom, and others elsewhere – do not care that there is mass online criticism of their positions.

Indeed, the loud ‘liberal’ reaction is taken to validate and enhance their political appeals to their bases.

And it may be that this shamelessness is affecting constitutional practice.

Until fairly recently constitutional practice in the United Kingdom and the United States, and perhaps elsewhere, rested on constitutional conventions.

Such conventions do not have the force of law and so cannot be litigated.

Instead, the conventions were followed partly because their overall utility was considered obvious (any government minister who might have flouted a convention would realise she or he may be in opposition again one day).

But conventions were also followed because a failure to do so would lead to significant political disapproval.

Others would ‘tut’.

And in a small self-contained political world, such tuttery mattered.

But now, when there is constant appeals to political bases, such tuttery does not matter at all.

The Bannons and the Cummings of the political worlds do not care about disapproval of political elites.

Nor do the Trumps and the Johnsons.

And so we have one paradox of modern politics: never have politicians been more accountable on an everyday basis for their actions, and never have they seemed so indifferent to accountability.

This, one hopes, may be a short-term thing: the opportunism of a certain group of political charlatans at a particular time.

Perhaps constitutionalism and respect for constitutional norms will reassert itself after this rush of heady populism.

Perhaps things may get back to normal.

Perhaps.

But, if not, we need to work out better ways of enforcing constitutionalism and the respect for constitutional norms than tutting.

For even with the amplification of internet and modern communications technology, mere mass-tuttery will not be sufficient. 

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The significance of the resignation of Sir Alex Allan

21st November 2020

Yesterday Sir Alex Allan, the Prime Minister’s independent adviser on the Ministerial Code, resigned.

His statement was succinct to the point of curtness:

“I recognise that it is for the Prime Minister to make a judgement on whether actions by a Minister amount to a breach of the Ministerial Code. But I feel that it is right that I should now resign from my position as the Prime Minister’s independent adviser on the Code.”

The first sentence is dressed-up, but it is nothing more than a statement of fact; only the second sentence has any import.

The real reason for the resignation is that the Prime Minister disregarded the view of Allan that the Home Secretary was in breach of the Ministerial Code. 

This resignation, in turn, follows the resignation in September of Sir Jonathan Jones as the Treasury Solicitor, the government’s senior legal official.

The resignation of Jones was also because of a breach, in that case that the United Kingdom government was deliberately intending to break the law.

And that resignation, in turn, followed the curious incident in 2019 where no government official was willing to sign a witness statement, on pain of perjury, as to the government’s true reasons for the five week prorogation of parliament.

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These incidents are accumulating.

Each example is, in its own way, significant – in that it signifies a particular breakdown of the machinery of government.

And taken together they indicate a trend – a government that is indifferent to constitutional norms and conventions and which sees self-restraints as mere inconveniences to dismiss.

Alongside these examples, of course, we have the government threatening both the independence of the judiciary and the efficacy of judicial review.

This is a government that wants to be free of an impartial civil service and independent judiciary and seeks to legislate as much as possible by decree.

This is what I called the ‘Executive Power Project’ (in gentle mockery of the ‘Judicial Power Project’ – a group who, quite seriously, contend that judicial power is the real problem of our age).

So the Allan resignation shows us nothing new, but is a further illustration of what can already be seen as a wider problem.

The government has collapsed into hyper-partisanship, and it is ready to negate every conventional principle and even to break the law, and wants to remove anything that can say ‘no’.

This, of course,  is the politics of hubris.

Yet the hubris of this government never seems to meet its nemesis.

The government still appears popular and there is no reason to believe another general election would return a different result to that of just under a year ago.

The government is even getting its excuses in early for the effect of the Brexit transition period ending on 31 December 2020, whether there is a deal or not.

The Allan resignation signifies what is wrong about this government and its attitude to constitutional propriety – but we already have a number of such signifiers.

And so the Allan resignation also signifies that the government believes it can keep on getting away with these constitutional trespasses – and the worrying thing is that the government is probably right.

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Australia shows the United Kingdom there is another way of being accountable for war crimes

20th November 2020

The United Kingdom government is currently making it (even) more difficult to prosecute its armed services for historic war crimes.

On this I did a video essay for the Financial Times (written and presented by me, produced by the estimable Tom Hannen).

The United Kingdom and war crimes (and torture in particular) is a depressing subject – from Kenya and Northern Ireland to Iraq and Afghanistan, there are cover-ups and other attempts to avoid scrutiny.

But there are other, more refreshing approaches to official accountability.

The Australian government has now published a report into war crimes in Afghanistan by its own special forces.

The report of by Paul Brereton, the Inspector-General of the Australian Defence Force Afghanistan Inquiry Report is an extraordinary and highly important document.

The report is unflinching.

And in response to the report, the Australian government has already taken concrete steps.

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War crimes happen, torture happens – and war crimes and torture can be committed by all sides, not just the ‘baddies’.

This is the nasty truth about conflict and human nature.

The question is about what to do about it when it happens.

One approach comprises official cover-ups, deflections, and smearing those seeking justice and accountability.

This is a misguided, short-term approach.

It means there is a sense of getting away with it, of permissiveness – and, in time, it means the armed services will lose valuable legitimacy when dealing with local populations.

The Australian approach is far harder, but a far better one.

The United Kingdom – as it did with torture in Kenya and Northern Ireland – would much prefer to pretend that these things never happen here.

Or, if there is acceptance that war crimes and torture took place, then there is then a shruggy ‘well, what is wrong with this?’  and ‘so what?’ and this dismissive attitude will get easy nods from political and media supporters.

Yet everything is wrong with war crimes and torture, and high standards matter and make a difference.

And the Australians seem to realise this, but the United Kingdom does not.

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