Category: United Kingdom Law and Policy

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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Making sense of the reported proposals of the government for “overhauling” the Supreme Court of the United Kingdom

16th November 2020

You would think that the most incompetent government in living memory would realise it needs the benefits of checks and balances, and of accountability and scrutiny.

You would, it would seem, be wrong.

The Sunday Telegraph yesterday had this piece, entitled “Supreme Court to be overhauled to curtail its constitutional powers”.

A tweet promoting the article said: “Telegraph reports that the government plans to bring the UK Supreme Court to heel: change the name, reduce number of permanent judges, bring in specialists – rolling back Blair era reforms.”

The news report itself is quite light.

There is no source on the record.

There is no concrete internal government document, just “plans” and “proposals”.

The only quote off the record is attributed to a “Tory source”:

“There’s a feeling that Blair and Falconer made a complete dog’s dinner of constitutional reform and that we’re feeling the negative effects of it today. 

“Just like in the US, campaigners are increasingly looking to the courts to settle political arguments and this puts the judiciary in a place most of its members really don’t want to be.”

The second sentence of the quote is interesting, as it frames the proposals in terms of the interests of the judges.

Given this framing, it should be noted that the article mentions later that the Lord Chancellor and Justice Secretary Robert Buckland “is said to see the reforms as part of his legal role to defend the independence of the judiciary, amid concerns about the perception of the Supreme Court”.

The impression is thereby given that the “Tory source” and the person describing the views of Buckland are the same person, possibly (given the conventions of political journalism) Buckland himself or his special advisers.

The rest of the piece is mainly padding and contains no interesting detail.

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So what should one make of it?

One feature is that the headline and the promotion of the article do not entirely accord with the substance of the piece, such as it is.

The import of the quoted “Tory source” and the description of Buckland’s view may perhaps be better characterised as “independence of the judiciary to be defended”.

If so, then the political significance of the report is not so much that an(other) attack is about to be mounted on the independence of the judiciary, but that this may be a preemptive effort at a defence.

Of course, the “proposals” and “plans” as reported are daft.

The Supreme Court, with its outstanding website and televised hearings, is an absolute boon for the public understanding of law.

For each appeal there are case summaries and other materials freely made available.

Instead of being hidden down some parliamentary corridor (as was the the case with the Judicial Committee of the House of Lords), the work of the Supreme Court is an exercise in transparency and accountability.

And in respect of the defeats of which the government is complaining, much of the the blame is at the feet of ministers themselves.

In particular, the prorogation case was lost by the government because not a single minister or official would put their name to a witness statement, on pain of perjury, setting out the true reasons for why parliament was closed down.

That is hardly the fault of any Supreme Court judge, or indeed of any activist lawyer.

And what would the new name of the court be?

(Also, for what it is worth, there has long been a ‘supreme court’ in England and Wales before the name was appropriated by the new highest court – it was the name by which all the senior courts went before the reform – and this caused no problems at all.)

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 Maybe one should not take a minor example of performative politics in a SUnday newspaper too seriously.

The last thing this utter shambles of a government – facing a pandemic and a Brexit when it would not be able to deal properly with either, let alone both –  is up to doing is significant constitutional reform.

But the noise is still important.

And the sound one can hear is that the government as a whole still has an illiberal temper and this indicates that, despite the reported departure of Dominic Cummings, the government still sees it as a priority that it should dismantle any parts of the state that can actually hold it to account.

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The departure of Dominic Cummings

14th November 2020

Dominic Cummings is a genius at politics but was a failure in government about policy.

And this is because politics and policy are fundamentally different.

For example, politics can be linear while (good) policy will tend to be complex.

The approach of Cummings to the 2016 referendum and the 2019 general election was to be focused and unfussed about niceties and conventions and indeed the truth.

‘Take Back Control’

‘Get Brexit Done’

And so on, and many other statements, including those written on the side of a bus.

There are many things that one can and should object to in this electoral ruthlessness but it worked – twice.

Policy, on the other hand, is not (easily) amenable to such rush jobs.

Cummings believes, wrongly, that grand projects were easy, as long as you approached them with the right attitude.

On his blog, for example, he wrote about “the history of the classified programme to build ICBMs and the way in which George Mueller turned the failing NASA bureaucracy into an organisation that could put man on the moon. The heart of the paper is about the principles behind effective management of complex projects. These principles are relevant to Government, politics, and campaigns.” (Emphasis in original.)

He also published a series of posts on “the unrecognised simplicities of effective action“, including this 31 page paper.

Such stuff must have been interesting and exciting to write.

But the examples he used were not transferrable, even if those examples were accurately understood to begin with.

And when faced with two immense policy challenges in government: the departure of United Kingdom from the European Union and the coronavirus pandemic, the heady precedents of the Manhattan Project and putting men on the moon turned out not to be that useful.

Successful policy making is hard and it can rarely (if ever) be done just by making strident demands from the centre and upsetting (in both senses of the word) all those on who you depend to implement policy.

And, as Cummings has said many times, the current planning and public procurement regimes may be cumbersome and problematic – but disregarding them so as to make decisions and award contracts with no safeguards against abuse is no solution to those problems.

The news yesterday is that Cummings has left government, though it is not clear the extent to which he will carry on ‘working from home’.

He had everything a policy blogger could have ever have wanted credibility (after those two electoral victories), a place in the centre, direct access to the prime minister, and a large majority.

He even had immense policy challenges in Brexit and Covid to which he could apply and show off his policy prowess.

But it did not work out, and his substantive policy achievements were such that they could fit in a cardboard box.

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Remembering the departure of a government adviser in 1989 – the resignation of Sir Alan Walters and its consequences

13th November 2020

Once upon a time there was a controversial government adviser in Downing Street.

The controversy was not just about clashes of personalities, though that was certainly also present.

The controversy was in respect of competing visions of the UK and its place within the (then) European Economic Community.

On one hand the adviser, and the prime minister whom he was directly advising, believed that both economics and common sense meant that the United Kingdom should not participate in the exchange rate mechanism (ERM).

Sterling should float freely so as to find its own level, as one could not ‘buck the market’.

On the other hand the Treasury, headed by a chancellor who later (and ironically) was to become a Brexiter, wanted the United Kingdom to be part of the ERM – even though it was plain that the ERM was (and was intended to be) a prelude to monetary union.

(If memory serves, the proposed name of the new currency was still then ecu – the European Currency unit – rather than euro.)

And so what was on one level a clash of personalities – which was lapped up like milk by the newspapers of the time – was supercharged by it also being about a fundamental disagreement about UK and its place in the EEC (now European Union) project.

It was this split and row that, more than the then prime minster’s famous Bruges speech (which was actually quite mild in content) that perhaps marked the start of the divisions in the Conservative party that continued for another thirty years, up to and beyond Brexit.

The adviser was, of course, Sir Alan Walters, and the prime minister and chancellor were Margaret Thatcher and Nigel Lawson respectively; and the date was 1989.

Walters was forced to resign, as did Lawson, and – in a sequence of events which flowed from those two resignations, Thatcher herself resigned the following year.

At about this time United Kingdom also entered the ERM, despite the misgivings of Thatcher and her supporters.

And when, with Black Wednesday in 1992, those sceptical of the ERM believed themselves vindicated when the United Kingdom abruptly had to leave the mechanism.

That sense of vindication then fortified and informed what was then called ‘Euro-scepticism’ at each stage of the development of the EEC into the EU and beyond.

Here it was significant that the Maastricht treaty was negotiated, signed and ratified around the same time.

And so those who sought to ‘push’ UK into the ERM were seen by Euro-sceptics as the same as those who promoted the integration of EU more generally, and so Black Wednesday was seen as discrediting the wider European project.

Thatcher and Walters were seen by ‘Euro-sceptics’ as having been ‘proved right about Europe’.

(I recall all this, as I was a Euro-sceptic at the time too.)

Now, as I type this, there is another row in Downing Street about an adviser, which is in part about a clash of personalities and in part also about the basis of the United Kingdom’s relationship with the EEC/EU.

It may well be that the current drama will be inconsequential, but such dramas – as in 1989 – can also be momentous in their consequences and implications.

And this especially may be the case as the United Kingdom is only days away from ending the Brexit transition period with or without a deal and in the midst of a pandemic emergency.

**

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Politics versus policy, and why the approach of Johnson and Cummings to exercising power is going so badly

12th November 2020

The current government of the United Kingdom has a distinctive approach to politics, and it has a distinctive approach to policy.

In both cases the approach is associated with the government’s senior adviser Dominic Cummings and, to a lesser extent, the prime minister Boris Johnson.

The approach to politics has as a feature a disregard for the settled norms and practices of conventional politics: elections and referendums are there to be won, and it matters little about how that is done.

It is a focused and, in terms of both the 2016 referendum and the 2019 general election, a successful approach.

And because of this approach, they have power and their critics, however justified do not.

The approach to policy is similar, and can also be characterised as moving fast and breaking things.

There is no need for formal consultation exercises or procurement procedures, it is enough for there to just be central direction and directives.

And any policy will be formulated and implemented not by the traditional civil service in its traditional way, but by external hires and special advisers.

It is an approach which is not so much contrarian but indifferent to how policy was made and done previously.

But the lack of structure and the constant sense of rush comes at a cost, and because of that cost such an approach may be unsustainable in the medium to longer term.

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There are currently news reports about a resignation of a Downing Street adviser and of general dysfunction around the prime minister.

And this would be bad at any time.

It would be very bad if the United Kingdom faced just one major challenge – either a pandemic or the imminent departure from the European Union in practice (though technically the departure was back in January), with or without a deal.

But for this disarray to happen in the midst of a resurgent pandemic (and a second lockdown, that in an of itself will be widely devastating), and days away from the end of the Brexit transition period, is about as bad as politics and policy can be in peacetime.

At the base of the current predicament is a lack of seriousness about policy.

Whether it be the self-inflicted problem of Brexit or the force majeure of a pandemic, the government at its most senior level has not taken policy making and implementation seriously.

This is because policy is just regarded as politics as other means.

And, in turn, this comes down to populism – which can be described as the promotion of easy answers in exchange for electoral support.

Populism can succeed in elections and referendums, and it has recently done so, but it cannot deal with hard policy.

And therein is the contradiction forcing the current political chaos: what works in obtaining power can often be the very reason why being in power then goes so badly.

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The TRUTH about Article 61 of Magna Carta

Yesterday someone posted on Twitter the following (now deleted) tweet.

Another (also now deleted) tweet linked to a video of what seemed to have been an exchange between a person called Brad and the police, in which Brad sought to rely on his rights under Magna Carta.

The video is still available on Facebook and is worth watching in full.

 

A quick internet search also reveals sites like this one purporting to set out your rights under Article 61 of Magna Carta.

And on Twitter there are still tweets such as this.

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Is this true?

Is there a right of lawful rebellion under Article 61 of Magna Carta?

Does displaying Article 61 of Magna Carta in a shop window mean you cannot be fined or closed?

Let us find out.

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Magna Carta is Latin for ‘the Great Charter’, a legal document written in Latin that first came into existence in 1215.

(By convention, and because it was originally in Latin, the ‘the’ is often missed out in the title by historians and lawyers when discussing Magna Carta, which I find amusing but is really not at all significant.)

An English translation of this Magna Carta is at the British Library website.

You will see this original Magna Carta is divided into numbered sections (known to historians and lawyers as chapters, not ‘Articles’).

At Chapter 61 is the following:

SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:

The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter.

If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us.

Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command.

If one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were.

In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear.

The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power.

We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party.

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You will see that the phrase ‘lawful rebellion’ does not appear in Chapter 61, and neither is there anything which provides that if Magna Carta is displayed it renders a person or business immune from closure or fines.

The provisions is instead what is called a ‘security’ provision, setting out how the rights under Magna Carta could be practically secured and enforced.

If you read the provision you will see that the rights and powers of security are given to twenty-five barons (elected by other barons).

There is nothing in the provision to support the claims made on its behalf by the social media posts set out above.

If you do not believe this, read the provision for yourself.

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But even if the original text of chapter 61 of Magna Carta had provided for lawful rebellion, or that the mere display of Magna Carta in a shop window would be enough to ward off law enforcement officials, the provision was removed within a year, when Magna Carta was reissued in 1216.

(It was reissued and amended many times.)

There is no sensible explanation for why a provision that was only in force 1215 to 1216 (and then only granted a power to 25 barons) would have the effect in 2020 of preventing a shop being closed under public health regulations if Magna Carta was placed in a shop window.

And that is the truth about Article 61 of Magna Carta.

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There is, however, a serious point to be made about the various claims made about ancient legal documents, such as Magna Carta or the Bill of Rights.

There is not a strong tradition of ‘constitutionalism’ in England, and in the United Kingdom we do not have a portable and accessible document we can point and say ‘this is our constitution’.

And in the absence of a widely shared knowledge of the constitution, claims about Magna Carta, the rights of freemen of the land, and so on, become popular but unchecked.

As a matter of law and history, Magna Carta is now little more than a legal ornament rather than a living instrument, and it is rarely if ever successfully relied on in practice.

It is a legal text which politicians and others can praise safely, as it provides no real protections.

(In contrast, legal texts that do actually provide practical rights such as the Human Rights Act 1998 are  often attacked by those same politicians.)

Some of Magna Carta is still in force, in its 1297 reissue, and you can see these provisions on the official legislation website.

You can also read my piece from the 2015 anniversary, and this is an informative and insightful speech on Magna Carta from the medieval historian Jonathan Sumption.

And you can watch this, from another Brummie commentator on Magna Carta, Anthony Aloysius Hancock.

 

 

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The importance of Nigel Farage and other political hobgoblins

2nd November 2020

There are news reports that Nigel Farage and the Brexit Party are re-branding as the ‘Reform Party’ and will campaign on the basis of ‘lockdown scepticism’.

One immediate response of many will be to sneer at and deride him and his supporters.

Just as years ago he and his United Kingdom Independence Party were sneered at and derided.

But this approach is perhaps misguided.

Farage and other political populists should always be taken seriously.

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Farage is a political hobgoblin.

He appears where there are cracks between the government and the governed, as a purveyor of easy answers.

On the European Union issue, for example, generations of politicians in the United Kingdom failed to make any positive case for membership.

Often, instead, politicians from both major parties competed with each other to sound the most sceptical about the European Union and to secure the most opt-outs. 

Year on year, the crack was widening: there was no political engagement with the voters on the importance – or even the nature – of United Kingdom’s membership of the European Union.

And so, in 2016, when a government held a referendum on the question of membership, there was not the support in place to carry a Remain vote to victory.

The Leave campaign did not so much as win the Brexit referendum; it was more that Remain lost it – and they lost it because of 40 or more years of political inaction.

Farage and other opportunists merely exploited that political gap.

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Now there is another broad policy issue where there is a political gap.

The London government is proposing a lockdown for, in effect, the month of November so as to stymie the recent resurgence in Covid-19.

But for a lockdown to have effect, there needs to be be more than laws passed and subsidies offered.

A lockdown is an exercise in public mobilisation: a government is seeking a population to change its ways, to act significantly different for a significant period of time, and to do things (and not do things) that the population would not otherwise do.

Such a public mobilisation needs, in a word, leadership.

There needs to be a sense of legitimacy.

There needs to be an understanding of the evidence and the reasoning on which such a lockdown is based.

Laws – however ‘tough’ – are not enough.

It is not even a question of making laws clear, or resourcing their enforcement.

The broad behavioural change being sought cannot be brought about by coercion alone.

And the irony is that the current pro-Brexit government has become so complacent on the basis of the supposed ‘will of the people’ referendum mandate justifying what they do that they have disengaged with the people.

There is a disconnect.

Legitimacy is an ongoing process, but it can be lost as easily as it is to make a visit to Barnard Castle.

Clarity and transparency cannot co-exist with closed and politicised decision-making.

So there is another political gap.

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And when there are political gaps, the political hobgoblins appear.

They are an index of the failure of a government to properly explain a complex policy issue and to engage with the public.

The easy answers promoted by the political hobgoblins have little or no merit in themselves, but this does not matter.

The political hobgoblins do not care, for they thrive in the political gaps.

And that is why political populists should always be taken seriously, for they are an indication of political failure.

Political hobgoblins exist to warn us.

**

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The road from Barnard Castle – government and the problem of illegality

20th September 2020

In any human community larger than about 120 to 150 – Dunbar’s number – it becomes increasingly difficult to govern on the basis of sheer personality alone.

And so instead of face-to-face encounters of dominance and appeasement you have rules and commands: things that bind you – oral or in writing – because of the legitimate nature of the rule or command.

In modern societies these rules and commands are divided between the normative and the positive, and the usual word for the latter is ‘law’.

As I set out briefly over at Prospect – in a modern society a government is creature of law, and so without law it is ultimately nothing.

Even a gang of thugs with official titles will find it hard to govern a medium to large society for long on the sole basis of a series of in-your-face confrontations.

But in addition to this basic requirement for government to take law seriously for government to exist at all, there is a key additional benefit of a government promoting compliance with the law.

If the government complies with the law then it is more credible for the government to insist on the governed to comply with the law as well.

This is, of course, an argument based on convenience.

But when a government itself does not itself appear to take law seriously it undermines the legitimacy of law.

And this is the problem the government of the United Kingdom now finds itself.

The problem of legality and illegality.

*

There are two events which illustrate this problem.

First there was the now notorious trip of a senior government adviser to and from Barnard Castle during lockdown for which he could provide no plausible good reason.

This appeared to be a casual breach of the applicable law, and one that he seemed to shrug off as unimportant because, by implication, laws were for other people and not for him.

In fact, this impression is to an extent unfair.

The police did investigate and they decided that, in the circumstances, there would be no further action and, even if he had been stopped on the day, he would have only got words of advice.

And so that was not law and due process averted but followed; it is just that law and due process did not get very far.

But what lingered was not the decision by the police (which was for the adviser a fortunate but not inevitable outcome) but the nonchalant indifference as to to whether the law was broken before the breach was was revealed.

And what many will remember is that neither the adviser nor the prime minister did take responsibility for the breach: nobody was sacked, and nobody resigned.

The only apology given was the adviser turning up late to the press conference to justify his actions.

*

Now, months after the trip to and from Barnard Castle, we have the second event illustrating the government’s problem with legality and illegality.

The government has proposed that legislation be passed that would enable it to deliberately break the law.

(See my posts here, here and here.)

This proposal has been supported by the House of Commons in principle at ‘second reading’.

It may well be that this proposal is soon dropped or defeated during its parliamentary passage.

But the damage has already been done.

The government itself is now on its very own journey to and from Barnard Castle.

A grand ‘away day’ from the rule of law.

Some supporters of the government have attempted to justify this proposal, but even few of them are convinced.

And the underlying policy issue – state aid on the island of Ireland after the transition agreement ends – is not connected to the proposal in any logical way.

There is no good reason – perhaps no reason at all – for the government’s proposed illegality.

And so the impression is again given that laws are for other people, and not the government.

*

This weekend’s press has told us that the government is now considering ‘tough’ penalties for those who break self-isolation during the ongoing pandemic.

The figure mentioned for the fine is £10,000.

On what basis can the government now insist that others comply with the law?

Of course, there is the resort to coercion: the use of police and the courts.

A government should not, however, have to rely on brute force (or the threat of brute force) to get people to comply with a law, especially in the context of public health and public safety.

The government may have the brute power to seek to make the governed comply with the law but not the legitimacy to insist.

That is quite a loss for any government.

And that is what was thrown out of the car window on that journey back from Barnard Castle.

**

Thank you for visiting this independent law and policy blog.

Please support the free-to-read and independent legal and policy commentary on this blog and my Twitter account either by the Paypal box above or by becoming a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

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Comments are welcome but pre-moderated, and so comments will not be published if irksome.