Big “P” Party vs little “p” party

9th May 2023

I once listened to a Young Conservative’s spirited explanation to two passers-by about how the Conservative Party did not actually exist.

There was, you see, the National Union of Conservative and Unionist Associations; and then, you see, there is the parliamentary party, which is quite separate; and then, you know, there is Conservative Central Office.

As the Young Conservative then went onto explain how professional party agents did not fit into this neat scheme, I could tell those being canvassed-in-the-street were both impressed and bewildered.

Surely a “Party” is a thing?

Well, actually, the Young Conservative was more-or-less correct.

And “parties” are still quite difficult to define.

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Of course, there are legalistic definitions.

In the Political Parties, Elections and Referendums Act 2000, “party” is to be interpreted as including “any organisation or person” and “registered party” is defined as a party registered under that Act.

This is not illuminating.

Once registered, parties have certain obligations and rights, but that will not help us understand what is meant by “party”.

Halsbury’s Laws of England tells us the effect of that Act:

“In order to field candidates at elections, political parties must be registered.

“A party may not be registered unless it has adopted a scheme which sets out the arrangements for regulating the financial affairs of the party and which has been approved in writing by the Electoral Commission. The scheme must include such information as may be prescribed by regulations made by the Commission and must determine in particular whether the party is to be taken to consist of a single operation with no division of responsibility for the financial affairs and transactions of the party, or a central organisation and one or more separate accounting units. Where a registered party is a party with accounting units, each unit has a treasurer and an officer.”

Again, informative but not illuminating.

Elsewhere in the law, there are hints

For example, one of the (many) contributions by James Goldsmith to the law of defamation was to bring a case which resulted in it being established that a political party cannot sue for libel.

In this way political parties are like public authorities.

But again, this does not tell us what a “party” is.

Outside of law, we can point to the defintion of the eighteenth century Irish philosopher and British politician Edmund Burke:

“a body of men united, for promoting by their joint endeavours the national interest, upon some particular principle in which they are all agreed.”

One may quibble with at least a couple of words in this defintion – but it is helpful because it does not constrain us to just looking at professional politicians, professional staff, and/or volunteers.

It is a body of [people].

And once one adopts this broad and practical defintion, one can begin to see what are perhaps the real parties.

For example, the fluid movements between think tanks and media organisations and news desks and op-ed gigs and special advisors and hired consultants – and elected politicians and peers – show bodies of people united by their joint endeavours to promote what they see as the national interest upon various agreed principles and policies.

A Martian looking down at Westminster, Whitehall and (what used to be called) Fleet Street would assume, by observation alone, that the sum of the interactions and communications between various bodies of people were the real political parties – regardless of formal nomenclature.

And this is not necessarily a thing about the political right – for there is also, often on the political left and in the political centre – fluidity between pressure groups and campaign groups and trade unions and public bodies and campaigning organisations and civil servants.

These small-p Burkean parties can overlap and sometimes correspond to the big-P Parties.

The big-P Parties indeed seem to be coalitions of these teeming small-P Parties, sometimes spilling outside.

And as big-P Parties decline – for changes in media and communications mean the information-dissemination and organisational purposes of the big-P Parties are falling away – these small-p parties will become again more important, as they were in the days of Burke.

It will not be a complete reversion – big-P Parties will still be significant because of enduring brand loyalty (and recognition) and lingering tribal allegiances.

And these small-p parties – although highly influential – are impossible to regulate with ease.

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We will have to get used to the boundaries between media and politics and business becoming more blurred – individuals casually going from news rooms to parliament to commerce, and so on, working in tandem with others similarly moving around.

And if enough of us object to this trend in our political culture?

Well: we can form our own a body of people united, for promoting by our joint endeavours the national interest, upon this particular principle on which we are all agreed.

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Coronation notes from a non-militant republican

7th May 2023

We will start with a very British thing, a red post box.

This is is one of about 171 post boxes which, if you look carefully, have the insignia and cipher of Edward VIII.

The point, of course, is that there was never a coronation for Edward VIII.

But this fact did not stop him being king – or from exercising any of his prerogative or other powers, including signing his own instrument of abdication and giving royal assent to the Act to which the instrument was scheduled:

He was R.I. (king and emperor) all the same.

This reminds us that, from one perspective, a coronation has almost no legal or even constitutional significance.

The monarch rules from the moment the last monarch dies.

There is no need for a coronation for a monarch to rule.

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But.

From other perspectives, a coronation has immense constitutional significance – even if it makes little legal(istic) difference.

For a coronation provides the point where a new monarch enters into a number of oaths, covenants, promises, undertakings, contracts, and so on, that exist to remind the new monarch and everyone else of – in effect – the transactional and consensual nature of modern kingship.

And, in a far less secular way, a coronation reminds us of the supposed relationship between the new monarch and the Christian god and the established church in England – for this is also a basis of modern kingship.

Indeed, without an understanding of the relationship of the monarch with the established Church of England one would not grasp how kingship, and thereby the constitution, developed after the Reformation.

No Church of England, no political crisis of 1688-89 and no Hanoverian succession in 1714; and with no political crisis of 1688-89 and no Hanoverian succession in 1714, our political development would probably have been very different.

So a coronation has immense significance – in that it signifies various things about our constitutional arrangements, even if new letter boxes would get the new royal signage anyway.

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A coronation is also a reminder of who does not have ultimate political power.

There is an old line – an untrue and grossly unfair line – about Ringo Star not even being the greatest drummer in the Beatles.

(In fact, he was and is a great drummer.)

Yet it was a line that came to mind during the ceremony yesterday.

The prime minister was not even the most prominent member of his own cabinet.

Indeed, during his reading he seemed like as much an onlooker as the rest of us.

His more junior cabinet colleague – who happened to be the Lord President of the (Privy) Council – had a far more conspicuous role.

(And we are perhaps fortunate that it was Mordaunt in place and not other recent Lords President of the Council.)

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One way of thinking critically about constitutional matters is to not focus on who has what power, but on what powers various actors do not have.

And, as this blog has averred many times, the one key feature about the crown in our constitutional arrangements is not so much about the power it has, but about the power it deprives others from having.

So, in contrast with say the inauguration of a president in a republic, our head of government is a but a bit-player at the coronation of the new head of state.

Yes, this is largely symbolism – but it also put the democratic (and demagogic) element of our polity in its place.

Some may say this is a good thing, some may say it a bad thing: but yesterday the head of government was just another commoner, albeit one with a brief speaking part.

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Of course, as this blog contended a couple of days ago, a confident monarchy should be unafraid of challenges, even on coronation day.

As such the reported heavy-handed police treatment of some protesters was wrong and inappropriate.

Yet, even if the protesters had been left free, they would never have had any effect.

For this country is not going to be a republic.

Never.

So those of us who are not monarchists have got to accept this, and work with the constitutional arrangements we have to make those constitutional arrangements better than they are.

That perhaps is the greatest constitutional significance of the coronation: we are still a monarchy, and that ain’t ever going to change.

And the monarchy will still be there, when even red post boxes will be gone and forgotten.

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“The King’s Champion” – why a confident monarchy should welcome challenges on coronation day

5th May 2023

Here is a remarkable, and as this post will contend misconceived and historically illiterate, take on the coronation:

And here is a similarly misconceived message:

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Let this blog introduce you to the King’s (or Queen’s Champion).

According to that history website:

“Originally it was the champion’s duty to ride, on a white charger, fully clad in armour, into Westminster Hall during the coronation banquet.

“There he threw down his gauntlet and challenged any person who dared to deny the sovereign’s right to the throne. The king himself of course, could not fight in single combat against anyone except an equal.

“It was only at the Coronation of Queen Victoria in 1838 that the traditional ride and challenge was left out of the ceremony. Henry Dymoke – Queen’s Champion at the time – was created a baronet by way of compensation.”

And here at Wikipedia is more information – and a splendid pic:*

And akin to the familiar challenge in a wedding ceremony, the challenge was expressly made:

“If any person, of whatever degree soever, high or low, shall deny or gainsay our Sovereign Lord [     ], King of the United Kingdom of Great Britain and Ireland, Defender of the Faith, son and next heir unto our Sovereign Lord the last King deceased, to be the right heir to the imperial Crown of this realm of Great Britain and Ireland, or that he ought not to enjoy the same; here is his Champion, who saith that he lieth, and is a false traitor, being ready in person to combat with him, and in this quarrel will adventure his life against him on what day soever he shall be appointed.”

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Times change, and the nature of challenges change, but the essence is just the same.

A confident monarchy should welcome challenges on coronation day.

Offering this challenge was part of the reason there were coronations.

From a constitutional and legal perspective, a coronation has little significance: the new monarch rules and can exercise powers on the death of the last monarch.

The function of the coronation is therefore largely symbolic: and part of the symbolism was to show off the confidence of the new monarch by offering a challenge to, well, challengers.

Bearing this in mind, let us go back to the take quoted above.

“The Coronation is not the moment to start an argument about the future of the monarchy” – yet hundreds of years of the king’s champion says otherwise.

“Our tolerance for any disruption…” – imagine the, ahem, disruption of a knight arriving to challenge the coronation.

Perhaps it is understandable though that some pundits and the police don’t realise that coronations were once about challenges as well as about validations.

After all, it would take a sense of history.

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Somebody should copyright “flawed music copyright cases” so as to avoid future abuses

4th May 2023

Another flawed musical copyright case.

The news from the Manhattan court is that Ed Sheeran has won the latest case.

These cases are not about piracy and bootleg copies being made for sale.

These case are also not even about samples being lifted.

They are about mere chord progressions.

As Sheeran’s lawyer avers: “the letters of the alphabet of music”.

These are the cases that bring discredit on media and copyright law – and also perhaps show a misunderstanding of how music is composed and how music develops.

We should just wish that the very notion of bringing such flawed cases could themselves be subjected to the law of intellectual property.

And then potential plaintiffs could just be sent a “cease and desist” letter – and so be stopped immediately in their, ahem, tracks.

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“Frankenchickens” and the law

3rd May 2023

Scrolling though Instagram while trying to think of a legal angle on the coronation worth writing about I came across this:

As it happens I have a lot of time for the broadcasting of Chris Packham and Megan McCubbin, and for my fellow Brummie Benjamin Zephaniah, and so I thought this may be an interesting case to write about for a blogpost.

What is being described as a “Frankenchicken”?

According to Zephaniah: “Decades of selective breeding have turned [chickens] into monstrous frankenchickens who can barely carry their own weight, and who lie in crowded barns, being burned by their waste.  We should not be treating animals like this.”

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The applicant – The Humane League – was kind enough to share their legal arguments with me.

At the heart of this legal case is a paragraph.

It is paragraph 29 in a schedule, in a schedule to some regulations, which are in turn regulations made under an Act of Parliament.

And this paragraph 29 provides:

“29.  Animals may only be kept for farming purposes if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare.”

(My emphasis added, for a reason which will become obvious.)

The schedule containing this paragraph has effect by reason of regulation 4 of the relevant regulations, and this provides:And these regulations were made under section 12 of the Animal Welfare Act:

It is in this elaborate way that many things are regulated: provisions within provisions within provisions – a legislative pass-the-parcel.

The applicant in this case is contending the government misunderstands paragraph 29.

The applicant says paragraph 29 prohibits the keeping of animals for farming purposes unless it can reasonably be expected that, on the basis of their genotype or phenotype, that they can be kept without any detriment effect on their health or welfare.

The applicant says the government is in turn contending that paragraph 29 does not establish any such prohibition “and, moreover, [the government] disputes that the word “kept” refers to keeping at all”.

(I do not have access to the government’s legal argument.)

The applicant then contends that because the government misunderstands paragraph 29 the government thereby makes two further legal errors.

First, the misunderstanding means that the government has adopted and maintains policies and practices, including a Code of Practice and a system of monitoring and enforcement, founded on legal error – including a policy of non-enforcement.

And second, as the policies and practices do not discriminate against those who in breach of the paragraph, there is a consequential lack of equal treatment between producers.

The applicant’s press release sent to me states:

“The Department of Environment, Food and Rural Affairs (Defra), the defendant in the case, argues that it has no policy which condones or permits the use of Frankenchickens, despite fast-growing breeds being standard in the chicken industry.

“The case also challenges the ‘trigger system,’ Defra’s monitoring system aimed at detecting welfare issues associated with conventional chicken breeds, of which the overwhelming majority will be fast-growing.

“The trigger system requires slaughterhouse vets to report problems, but only if they occur above a given threshold – which The Humane League argues is far too high.

“A final ground of the case argues that the system in place is creating unequal treatment between chicken producers that comply with the law and those who do not.”

This, of course, is not an animal welfare blog – but from a law and policy perspective what is fascinating – and clever – about this case is that the applicant is seeking declaratory relief.

This means the court is being invited to declare the meaning of a legal instrument, in this case paragraph 29.

And this is a perfectly proper thing for a court to be asked to do.

The court is not being asked to directly quash any policy, but to say what a legal provision means.

And a paragraph deep in a schedule to regulations made under a statute is as much a statutory provision as section 1 of any Act of Parliament you can think of.

It also seems that there are differing views on what paragraph 29 means – and the view contended for by the applicant in this case has survived a permission hearing and so can be taken as at least arguable.

This is therefore not a simple try-on, but something the high court thinks is a serious legal question to be heard.

The framing of the case, however, means that if the applicant prevails then it will also pull away the basis of various policies and practices based on that paragraph.

That is an ambitious case to make, but again it is a legitimate and arguable one.

If the government has based policies and practices on a misunderstanding of the law then those policies and practices can fall too.

According to ITV, Defra argues that fast-growing chicken breeds are not inherently condemned to suffer health problems and that there is no scientific consensus saying so.

A spokesperson is quoted as saying:

“We are proud to have some of the highest animal welfare standards in the world.  All farm animals are protected by robust animal health and welfare legislation. This sets out detailed requirements on how farmed livestock, including meat chickens, must be kept.

The hearing is today and tomorrow.

I have no idea which side will win – though I am on the side of the chickens – but this is an example of litigation done well by a pressure group – and it is thereby an example of how such public interest litigation should be brought.

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You can read more on the Humane League’s campaign here.

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Hurrah for this latest move towards transparency of the UK Supreme Court

27th April 2023

The test for whether an appeal reaches the Supreme Court of the United Kingdom is that it raises “a point of law of general public importance”.

This means that, by defintion, the appeals are of wider interest than to the parties themselves.

It also means that it does not matter how interesting the facts of a particular case may be to judges or to the public, it will not get to the Supreme Court unless the outcome matters to others.

As such, all cases before the Supreme Court should be as transparent as possible.

But.

There is nominal transparency, and there is real transparency.

Being able to watch streamed proceedings, for example, is of little use if it is difficult – even impossible – to follow the submissions and lines of argument.

You may as well walk into the court from Parliament Square and try to work out what is going on at a hearing.

Real transparency comes from having access to the documents before the court – the skeleton arguments (setting out the legal argument), the statements of case (setting out the basis of the parties’ positions), and even the witness statements.

Only then do you have real transparency.

And so the latest news, as reported by Legal Futures, is welcome.

The Supreme Court is moving to putting documents online – subject to the usual (and usually understandable) exceptions for confidentiality in particular cases.

This would be a huge boon for the public understanding of law, and it will enable viewers to fully and constructively engage with what is going on.

A student – or a lay person – could sit with two screens – one watching the hearing, and the other toggling between documents, joyfully clicking onto hyperlinks to case reports and legislation.

There are few better ways than to grasp the nature of practical law and to understand how cases work.

There can be no argument in principle against this: for after all, these are cases which raise “a point of law of general public importance” – and these are documents referred to in open court.

There will be grumbles from some lawyers, who may not be willing to have their well crafted documents effectively become texts freely available in the public domain.

But that would be the cost of having a case before the Supreme Court – if you are litigating on “a point of law of general public importance” then it has to be on an open book basis.

And the general availability of such texts – which would otherwise often be stored in the exclusive precedent files of a small group of law firms and chambers – will promote best practice generally.

Lawyers at such law firms and chambers will be giving something back to the wider profession in a helpful and meaningful way.

Of course: pretty soon many people would get bored by the novelty of such access.

But in the longer term it generally would have a positive effect on legal study and professional development, as well as on the public understanding of law.

And, it must be admitted, it would be pretty great for legal bloggers too – and the readers of such blogs.

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How Prince Harry’s legal case shows how the phone hacking story has returned to the start of a circle

26th April 2023

The news about the royals and hacking, well summarised and analysed by Joshua Rozenberg at his Substack, brings us back to the start of a circle.

For the phone hacking story only came about because of the royals.

The story came about because the Fleet Street press of the time – with their well-connected links with the Metropolitan police and the private investigation mini-industry, and unchecked by fearful politicians – sought access to information from the voicemails of the royal household.

Because the royal household became involved, the matter was passed to different police officers at the Metropolitan Police, who then raided and took compelling evidence from private investigators.

And in Scotland Yard that evidence was stored, and it became relevant to civil claims some years later, and then suddenly the scope and extent of tabloid phone hacking became apparent.

But without the royal household connection, the crucial evidence would not ever have been seized and stored, and without that evidence being available for later litigation, the hacking story may never have emerged.

What happened shows the practical importance of the monarchy to our politics, regardless of constitutional theory and conventional wisdom.

It seems only the monarchy has any autonomous power when the police and the media and the politicians collude.

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Such crude phone hacking now seems from another age – technologically, culturally, politically, legally.

After the current crop of cases it may well be that the phone hacking litigation comes to an end.

Prince Harry’s various cases will then perhaps be the other bookend to that provided by the original hacking of the royal household telephones.

But as the parties attend hearings at the Royal Courts of Justice in the Strand, the sophisticated surveillance and data retention by the state and technology companies continues at an unimaginable scale, again unchecked by either politicians or the media.

The phone hacking of a media generation ago seems like a garden shed affair compared with a huge urban conurbation of the exercise of “investigatory powers”.

Any abuses and misuses (or even uses) of the current technology will, in turn, probably never come to light so as to horrify.

Unless, of course, the abuses and misuses (and uses) affect the royal household.

And only then, maybe, will we ever get to hear about it.

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

25th April 2023

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

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

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

The Act had to go.

And this approach failed, even from an illiberal perspective.

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

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

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

That is all that needs to be done.

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

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

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

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

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

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

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

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

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

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

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

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Blaming the blob

24th April 2023

There is an enduring myth that great political reforms can be achieved while antagonising those expected to put those reforms into practice.

That a lone genius or “hard” taskmaster wondering around, say, Whitehall can effect fundamental social and economic changes while also battling and even belittling the civil service.

This is not to say that such a figure cannot have political impact: headlines can be produced and even votes can be won.

But to actually achieve change on a national – or even regional and local – level requires administration.

In essence: ministers and their advisers need to have senior officials and other civil servants on their side.

Senior officials and other civil servants may not agree personally with the politics of the government of the day (and when I was a government lawyer I was certainly not a Blairite, and I still am not), but most public servants do take being non-partisan seriously in their work.

Wise ministers – of all major parties – know this.

Having a “culture war” against the “blob” is therefore not a form of policy-making and implementation, but a substitute for it.

It is what one does when one actually is not serious about effecting reforms.

Since 2016, in particular, there have been many attacks on, and removals from, the senior civil service.

And when policies fail because of the automatic operation of, well, reality, “remainer” and “obstructive” and “activist” civil servants are blamed instead.

But such complaints are the sounds of failure.

What those wanting to drive through fundamental change need to do is work with public servants rather than against them.

Of course, there will be group-think and conventional wisdom, but a minister through their private office and with intelligence can challenge and offset such things without confrontation or rancour.

Ministers and their advisers would do better to remember that they can either achieve change or “take on” their departments, but not both.

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The significance of the resignation of Dominic Raab

21st April 2023

The end, when it came, was not pretty.  But then again, endings rarely are.

The resignation letter was extraordinary:

The impression was that the letter was drafted in a rush – the sort of draft one would put together to get something out of one’s system, before composing something more measured.

The letter was accompanied by a 1,100 word piece in the Telegraph which was published eighty-or-so minutes later:

As a published article, it presumably would have been commissioned, edited and lawyered before publication – and so it may have been written before the letter.

But it said much the same.

One remarkable thing was that both the letter and the published article were in the public domain before the actual report – presumably to “frame the narrative” as a political pundit would put it.

And then the report was published:

And it became obvious why Raab was so anxious to “frame the narrative”– as parts of the report were, as a lawyer would put it, “adverse”.

This did not seem to be the usual, coordinated exchange of letters with a prime minister, which one would expect with such a senior resignation.

Instead, it looked a mess.

And one can only wonder about how this mess relates to the unexpected delay from yesterday, which was when the report was expected to be published and the prime minister was expected to make a decision.

What seems plain, however, is that Raab was pressed into a resignation.

If so, there is a certain irony, as it was the threatening of unpleasant outcomes to people who did not comply with his wishes/demands which was the subject matter of some of the complaints.

It therefore appears that Rishi Sunak was more skilful in this cost-benefit power-play than Raab.

In his resignation letter, Raab twice warns of the “dangerous” outcome if he did not get to continue on his way.

But in practice, Sunak by being silent and not “clearing” Raab yesterday placed Raab in an increasingly difficult situation, where it was becoming obvious even to Raab that unless he resigned he would be sacked.

Some may complain that Sunak “dithered” – but another analysis is that this former head boy and city banker patiently out-Raabed the school-cum-office bully.

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Beginnings, like endings, are also often not pretty.  And rarely are they ideal.

But, at last, the Ministry of Justice is free from perhaps the worst Lord Chancellor of modern times.

(Yes, worse even than Christopher Grayling or Elizabeth Truss.)

Over at his substack, Joshua Rozenberg has done an outstanding post on why – in substantial policy and administrative terms – Raab was just so bad.

And on Twitter, the fine former BBC correspondent Danny Shaw has also detailed the many failings in this thread:

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The Ministry of Justice is in an awful state.

The departing minister’s obsession with prioritising symbolic legislation such as the supposed “Bill of Rights” and a “Victims” Bill – which mainly comprises the shallow sort of stuff too often connected to the word “enshrining” – was demonstrative of the lack of proper direction for the ministry.

And it is significant that it was only during the interruption of the Truss premiership, with a new (if temporary) Lord Chancellor that the barristers’ strike was resolved.

Joshua Rozenberg sums up that telling situation perfectly:

“We saw an example of Raab’s indecisiveness in the way handled the strike by criminal defence barristers last summer. Increasing delays — caused initially by government-imposed limits on the number of days that judges could sit — were rapidly becoming much worse.

“Raab seemed like a rabbit frozen in the headlights, unable to decide which way to turn. The problem was solved by Brandon Lewis, who replaced Raab for seven weeks while Liz Truss was prime minister. He simply paid the barristers some more money.

“It was not so much that Raab was ideologically opposed to making a pay offer. On his return to office, he made no attempt to undermine the pay deal reached by Lewis. It’s just that he seemed unable to take a decision.”

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Now decisions can be made.

Gesture-ridden draft legislation can be abandoned.

And the grunt-work of actually administering our courts and prisons and probation service can take place.

That grunt-work will also not be pretty, and the incoming Lord Chancellor will not get easy claps and cheers that come with attacking “lefty” lawyers and “woke” judges.

But a new start can be made, and all people of good sense should wish the new Lord Chancellor well.

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