Yes, the quality of the administration of Boris Johnson is poor, but it is also symptom of our constitutional weaknesses

28th November 2021

The primary political problem – and thereby the primary policy problem – with the current government is, of course, the Prime Minister.

As this blog averred two days ago, there is no policy predicament so bad that it cannot be made worse by his intervention.

That the Prime Minister is at the centre of the government’s political and policy problems is well explained today by Adam Bienkov.

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But.

From the constitutionalist perspective, the significance of Boris Johnson’s premiership is not really about him, but about what he can or seeks to get away with.

For Johnson is the politician supreme – an outstanding politician: in obtaining power, in holding on to power, and in evading any responsibility for how he exercises (and does not exercise) his power.

(For those to about to reply demurring from that last proposition, please note that it is not a compliment.)

Johnson is Prime Minister, and his opponents are not.

And Johnson’s premiership is a practical exercise in showing the weaknesses of the constitution – so much so that, like Margaret Thatcher and Tony Blair before him, he is more likely to be brought down by hubris than by any formal constitutional mechanism.

The weaknesses are, for examples, that a Brexit was done but without any proper scrutiny of the the withdrawal agreement; that similarly Covid law and policy has been and continues to be implemented without any proper scrutiny or accountability; that we have weekly shoddy policy making at the highest level leading in turn to weekly u-turns and chaos; that we have a minister of state conducting an erratic and shouty Brexit policy and playing with Northern Ireland’s future without any obvious cabinet interest or concern; and so on.

The manifold manifest failures of the current administration are not just the failures of one arch-politician, they are also systemic and structural.

Different parts of our constitutional arrangements are not doing their job.

And then when we look at how freely Johnson’s government is seeking to frustrate, circumvent or simply abolish any check and balance – from judicial review to the Electoral Commission – then you see further systemic and structural weaknesses.

‘The poor quality of the Johnson administration is not a bug, but a feature’, observes Bienkov correctly.

Yet Johnson’s premiership is, in turn, a symptom of our weak constitutional arrangements.

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At this point in this sort of discussion there will be a Pavlovian reaction that this means that we should have a written (that is codified) constitution.

But that would not necessarily help.

First, given the doctrine of parliamentary supremacy there is no way that a codified constitution can be put in place so that it is safe from easy amendment or repeal.

Second, a codified constitution can be illiberal as well as liberal, and any general code put in place in the current charged authoritarian political environment may well be less welcome than the current situation.

What is needed is not so much a new constitution, but for constitutionalism to be taken seriously.

Constitutionalism is the notion that there are political rules more important than any political expediency.

There are also a range of discrete statutory improvements that can and should be made – such as: dealing with the appointment to the House of Lords, reducing the scope of unscrutinised delegated legislation, placing the remainder of the royal prerogative on a statutory basis, and so on.

Perhaps even electoral reform – though that, like a codified constitution, is not necessarily a liberal panacea.

But, on any basis, the constitution does need to be Johnson-proofed, for the next politician supreme to get almost absolute power in the United Kingdom may not be as sloppy a buffoon as Johnson.

And there is little in the constitution to stop them.

Johnson’s premiership may be dreadful in and of itself, but it also a warning.

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“Law and Order” vs law and order, “Free Trade” v free trade, and so on – but can the dislocation between political language and policy substance be healed?

27th November 2021

Consider the following areas of policy: law and order, taking control of our borders, free trade, and so on.

All of them sensible, everyday areas of policy.

Now take each of those phrases, and do a little magic: capitalise them, and add speech marks and an exclamation mark.

You now have: ‘Law and Order!‘, ‘Taking Control of our Borders!’, ‘Free Trade!’,  and so on.

This blog has previously averred at the distinction – indeed discrepancy – between law and order and ‘Law and Order!’: that those promoting the slogan do so at the expense of law and order in practice.

And this week this blog also set out why a strident and unilateral approach of ‘Taking Back Control’ is the opposite of a practical and effective border policy.

As for ‘Free Trade!’ the reality of Brexit is that it is perhaps the biggest single protectionist measure in modern British history, even though Breixters profess that they believe in free trade.

There is a fundamental dislocation of political language and policy substance.

But it is one thing to observe and note these tensions – contradictions – but it is another to know what to do about them.

And it is important that this dislocation is fixed, for it is difficult to see how we can have any sensible politics and policies when there is a basic dysfunction in our political discourse.

Maybe there is no solution.

Perhaps this fracture can never heal, and all the opponents of the current government can do is adopt a similarly cynical approach to language and policy.

If there is a solution then it no doubt has to be one which addresses the demand for (or at least tolerance of) meaningless politics by voters and the supply of meaningless politics by those in politics and the media.

One can hope that the next great reforming politician will be the one who reconnects political language and policy substance.

But there is no particular reason or evidence to think that we will get such a politician.

And so in the meantime, all we can do with this dislocation is (if you forgive the pun) brace ourselves.

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The unforced error by Boris Johnson of publishing the letter to the French President

26th November 2021

Yesterday Nick Fletcher, a little-known member of parliament (with his own taste for time travel), tweeted a daft statement on headed paper about whether casting a female Doctor Who was the cause of a real-world crime surge.

And yet that was not the most stupid thing on headed paper tweeted yesterday by a politician.

The current prime minister surpassed even that missive.

What was stupid about this prime ministerial letter being tweeted was not so much the content – though the content was bombastic and demanding.

The letter had all the quality of an English person outside a Parisian café ordering in English slowly and loudly, with hand gestures.

The real stupidity of the letter was in its tweeting.

And so what then happened was almost inevitable.

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Le whoopsie (with *hand gestures*).

There are two observations to make about this latest pratfall.

The first is personal to the current prime minister: there is no policy predicament so bad that it cannot be made worse by his intervention.

This is yet another unforced error by perhaps the greatest political manufacturer of unforced errors.

The second is that it demonstrates a tension – if not a contradiction – at the heart of Brexit and post-Brexit politics and policy: the political need for the United Kingdom government to play to its domestic audience and the policy need for it to cooperate with European states.

Often the United Kingdom government gets away with it, as those in Europe care little or nothing about the front pages of British newspapers.

But in this instance, the play for the domestic audience was at the direct expense of cooperation.

The café door has slammed shut.

And the loud English man is left outside gesturing to nobody in particular, while trying to assure himself that nothing has gone wrong.

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By ‘taking back control’ of your borders, you can lose control of your borders – the lesson of Brexit

25th November 2021

Brexit, we are often told by its supporters, was about taking back control – especially control of our borders.

But think about borders for the moment.

For every border there is – perhaps axiomatically – another side.

Else it would not be much of a border.

This means that if you take back control as an exercise in unilateralism then you may lose control – or influence – over what will be happening to your border from the other side.

And so you will not be taking back control – but losing control.

For an effective border usually requires there to be shared policies on both sides.

Therefore, without cooperation, you lose control or influence over what will be happening to your border.

This is obvious – if you think about it.

The issues with the borders in the island of Ireland and in the English channel both have a common basis in that Brexit-supporting politicians underestimated the importance of cross-border cooperation and shared policies in making borders work in practice.

Control of any border is rarely achieved – at least without lethal enforcement.

And even the borders of totalitarian regimes dissolve.

The policy of the current governing party of the United Kingdom used to be about bringing down walls and promoting shared policies – the Single Market owed much to Lady Thatcher and Lord Cockfield, and the expansions of both NATO and the European Union was promoted by successive Conservative governments.

Short of repression, the only way to take (or have) control of any border is by cross-border cooperation and shared policies.

And so, in this and many other ways, Brexit is an expensive and painful exercise in the United Kingdom government finding out just how interdependent things are in a complex world.

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Covid and the accountability gap

24th November 2021

This is just a brief post to set out some general thoughts on Covid and the  accountability of government.

During this pandemic, the government has done and not done various things, and at some point the government should give an account of what it did and did not do (and is doing and not doing).

Because of the sense of emergency, and because information has often been incomplete, it has been difficult to hold the government to account on a real time basis.

The government has put off any formal inquiry until (at least) next year.

And the other means of holding the government to account – the courts, the parliamentary ombudsman, coroners’ inquests, parliamentary committees – all have their limitations and remits.

No doubt there are some politicians in (or previously in) government who want to push any inquiry as far as possible.

They will want to get to the head-shaking, sad-faced lessons learned and benefit of hindsight stage with little or no affect on their political careers.

But as it stands, we are nearly two years into perhaps the single biggest ever peacetime exercise of public policy, and there has been almost no real time public accountability for the various government decisions and actions (and indecisions and inactions).

And so this episode shows the sheer accountability gap in the constitution of the United Kingdom.

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The Moral of the Roller-Skating Christmas Pudding – the Significance of the Absenteeism of the Lord Chancellor

23rd November 2021

The criminal justice system veers between chaos and crisis, if those two extreme states can be distinguished.

To quote the Law Society Gazette:

“The government has admitted that nearly £500m awarded by chancellor Rishi Sunak last month to bring down the Crown court backlog will reduce it by only 7,000 over three years.

“Justice minister James Cartlidge told the House of Commons yesterday that the extra £477m allocated in the Treasury’s spending review last month for the criminal justice system ‘will allow us to reduce Crown court backlogs caused by the pandemic from 60,000 today to an estimated 53,000 by March 2025’.

“According to a National Audit Office report, the Crown court backlog increased by 23% in the year leading up to the pandemic, increasing from 33,290 on 31 March 2019 to 41,045 on 31 March 2020.

“The backlog increased a further 48% since the onset of the pandemic, to 60,692 cases on 30 June 2021.”

The criminal justice system is currently being held together by (ahem) a wig and a prayer.

Last weekend there was the Bar conference, where the Lord Chancellor and Justice Secretary Dominic Raab was invited to address those barristers who are (somehow) keeping the criminal justice system going, along with court officials, solicitors and others.

The Lord Chancellor did not turn up.

His civil servants sent a video recording instead.

It was an extraordinary exercise in political absenteeism.

And where was the Lord Chancellor and Justice Secretary instead of engaging with legal professionals?

The Lord Chancellor and Justice Secretary was with a roller-skating Christmas pudding:

And why was the Lord Chancellor and Justice Secretary with a roller-skating Christmas pudding?

Because he is a politician with a marginal constituency and, on a cost-benefit analysis, it is more politically advantageous for him to be there rather than at the Bar conference.

And, in a way, this a direct outcome of the change in the Lord Chancellorship in 2005, where the office ceased to be exclusive to a senior and experienced lawyer in the House of Lords (and usually their last job) and became just another political job for a politician in a hurry.

The selfie is a perfect exemplar of the choices that now have to be made by any justice secretary, after the 2005 reform opened the office to political careerists.

It was therefore only a matter of time that an occupant of the old office of Lord Chancellor would openly put politics above the legal system when there was a choice to be made.

That said, a Lord Chancellor happily advertising their absenteeism with a selfie with a roller-skating Christmas pudding was perhaps less predictable.

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A note on the Leveson Report, ten years on

22nd November 2021

The report of the Leveson Inquiry into the culture, practices and ethics of the press was published ten years ago.

I happened to have been a witness at the inquiry, giving evidence on blogging and social media, and so I thought that – after ten years – it may be worth setting out some thoughts about the inquiry.

The Leveson Inquiry was a half-success and a half-failure.

The successful part was the evidence stage, where a huge amount of evidence was placed into the public domain about the culture, practices and ethics of the press that would have not been placed into the public domain, but for the inquiry.

This evidence is in the form of written witness statements, original documents and oral evidence.

We now know so much more about the culture, practices and ethics of the press in the years before 2012 than we otherwise would have done.

There is a substantial archive of public domain information that can be – and has been – mined for fine academic research and media commentary.

The evidence stage was a boon for the public understanding of the media – and how the law was (and was not) followed.

But.

The inquiry got all that evidence…

…and did not seem to know what to do with it.

The four volumes of the report are less interesting reading than the source material.

The volumes were published all at once, and – after a brief flurry of interest – were left unread.

A more staged release of the conclusions would have been far more useful.

And as for the recommendations, they – like Hume’s treatise on philosophy – fell dead-born from the press.

The model(s) of regulation adopted after the inquiry was not that which was recommended.

There are those who (still) are partisans for the Leveson recommendations – but the recommendations have not been of any practical consequence.

And – in the meantime – the nature of the media and of print news has changed significantly.

The Leveson inquiry was at the tail end of when there was an actual newspaper industry – where newsprint was published daily on an industrial scale.

Since the circulations have collapsed.

Now anyone with an internet connection can publish to the world.

If for example a reporter cannot publish something in a newspaper (or news site) there is nothing stopping a tweeter publishing the same to a potentially far wider audience.

And the envisaged second stage of the Leveson inquiry – dealing with media relationships with the police will now not happen – though the Daniel Morgan report gave us a steer for what that probably would have contained.

(See my post on why the Daniel Morgan report is the nearest we will ever get to Leveson Stage Two.)

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In my view, the solution for media misconduct – either in news media or social media – is to strengthen the legal rights of the individual vis-a-vis the news sites and social media platforms (and to strengthen the legal obligations of those sites and platforms), rather than setting up some regulatory scheme.

All regulators tend to be ‘captured’ by who they regulate, and regulatory remedies are more likely to be circumvented or simply ignored.

And the tensions between the news media and those who were affected by media misconduct were such that there would never be an agreed regulatory regime that would serve both interests.

Nothing the inquiry could have recommended would have been accepted by the press and press victims.

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The mantra of ‘more regulation’ presupposes that a thing can be regulated other than by the general law.

But the media cannot be regulated other than be the general law – such as data protection, misuse of private information, defamation, copyright, and so on.

This is not because one is blind to the misconduct of the media (and indeed during the Leveson Inquiry I was able to show one example of such misconduct), but to assert a simple point about things having to work in practice.

There is nothing to be gained by demanding that there should be sector specific media regulation if that cannot work in practice.

So, although the Leveson inquiry had all the paraphernalia of a legal exercise – a judge, statutory powers, barristers, oral examinations, and even taking place in a courtroom – it was ultimately a failure because – ironically – it was not able to take law seriously and was bound by its terms to propose an effectively non-legal regulatory regime instead.

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The ultimate check and balance in the United Kingdom constitution is not what you think it is

21st November 2021

The Sunday press this weekend details how the current prime minister has lost the confidence of his parliamentary party:

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And this news points to the ultimate check and balance of the United Kingdom constitution.

The ultimate check and balance of the United Kingdom constitution is not the electorate, or the courts, or the legislature, or any independent agency.

Still less is it the free press – which tellingly is the only estate of the realm that this government has not sought to abolish, frustrate or circumvent.

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‘You cannot hope to bribe or twist, thank God! the British journalist.

But, seeing what the man will do unbribed, there’s no occasion to.’

Humbert Wolfe, 1930

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Nor is the ultimate check and balance some grand constitutional principle, such as the rule of law, or the supremacy of parliament, or representative democracy.

No – the ultimate check and balance to a prime minister in command of a large parliamentary majority, and thereby with almost total political power, is one of the most ancient of human concepts.

Hubris.

It was hubris that brought down Margaret Thatcher, who thought she was politically invincible she could press on with the community charge (poll tax).

And it was hubris that brought down Tony Blair, who thought that he could do as he wished with foreign policy and Iraq.

Neither Thatcher nor Blair – both of whom won three general elections – were defeated by the electorate.

Nor were either of them brought down by any formal constitutional mechanism, such as impeachment or otherwise.

They were brought down because they got carried away with the almost limitless power they had as prime ministers.

Like some old morality tale, prime ministers obtain near complete power and then get brought down because they are unable to restrain themselves.

And this is what is now happening to Johnson, but in an accelerated version.

At least, if Johnson is brought down, that his nemesis was hubris should appeal to his classicist affectations.

The real worry, of course, is how to check and balance prime ministers who do not get carried away.

We should not have to rely on a politician’s own weaknesses to ensure that abuses and misuses of power are avoided.

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Three ways in which this government is devaluing the currency of political language

20th November 2021

Over at his substack the fine political journalist Adam Bienkov has a good and detailed post on how Downing Street lies:

Of course, some will say, all politicians lie.

But what is distinctive about these lies is how easy they are now to document and expose.

For example, Downing Street had falsely insisted Johnson had complied with the rules on a recent hospital visit.

So yes, all politicians lie – but rarely are the lies in such plain sight.

We can all watch this dishonesty in real time, and there is no other word for what we can all see but lying.

Yet this is just one of (at least) three ways in which the current prime minister and his government are devaluing the language of politics.

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Take promises.

 A recent post on this blog set out three express promises in the 2021 general manifesto that the government has disregarded:

‘We will proudly maintain our commitment to spend 0.7 per cent of GNI on development, and do more to help countries receiving aid become self-sufficient.’

‘On entering Government in 2010, the Conservatives acted decisively to protect the UK’s pensioners. The ‘triple lock’ we introduced has meant that those who have worked hard and put in for decades can be confident that the state will be there to support them when they need it. We will keep the triple lock…’

‘We promise not to raise the rates of […] National Insurance […].’

We can now add to these reneged commitments, a fourth:

‘We will build Northern Powerhouse Rail between Leeds and Manchester and then focus on Liverpool, Tees Valley, Hull, Sheffield and Newcastle.’

Of course, all elected governments depart from their manifestos.

But there is something so blatant about how the current government repudiates on its explicit commitments.

These are detailed explicit promises – and the government does not care about disregarding them.

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And take threats.

How many more times are we going to hear Lord Frost threaten to trigger Article 16?

Even jaded Brexit commentators cannot easily keep up.

And now, with the prospect of Christmas supply lines being affected by any European Union response to the United Kingdom triggering the provision, the United Kingdom this weekend seem to be downplaying the prospect.

But threats, like promises, need to be credible to be effective.

And the United Kingdom government generally, and David Frost in particular, seem to be doing everything they can to discredit and undermine their own position.

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Words matter.

For although the United Kingdom state has (rightly) a monopoly on the use of coercive power, most politics – and policy and law – in practice rests on words and the meanings that people understand those words to have.

And so if there are fundamental dislocations between words and meanings then this subverts the polity itself.

Our current government states things which can be effortlessly disproved, reneges on detailed manifesto promises, and does not carry out threats.

Political discourse thereby becomes just noise.

Yes – the government can perhaps claim some tactical advantages from this conduct, but this is at the cost of strategic strength.

And as Bienkov avers in his post, one recent cost is that nobody believes Downing Street when it denies a story.

For this Boris Johnson and those around him have only themselves to blame.

They are squandering something of absolute political value.

And they do not seem to care.

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“Let me be absolutely clear” – the two rules of clarity

19th November 2021

Here is a government minister:

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“For clarity…

“I would like to make our position… 100% clear….

“I want to be clear…”

And so on.

This minister is not even the worst politician in this respect – the former prime minister Theresa May often seemed incapable of saying anything without prefacing with how she was making something clear.

But David Frost’s latest verbiage means it is perhaps time for me to state on this blog a couple of rules about clarity that I have often tweeted.

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The First Rule of Clarity

If you have to describe a thing as “clear” then it usually is not.

The Second Rule of Clarity

The stronger the intensifier for “clear” (for example, “very clear”, “absolutely clear”, “crystal clear”) the less clear that thing will tend to be.

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The rules also apply to “clearly” – and this is always a tell in a litigation letter or legal argument that the author has no confidence in what they are saying.

Compare and contrast:

“This passage clearly shows that…”

“This passage shows that…”

The very fact you are having to gloss what the passage means indicates that the passage is not clear.

If the passage were clear, the gloss would be redundant.

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Going back to the example above, Frost says three times – in a tweet and his quoted speech – about things being clear.

If the position were clear he would, of course, not need to tweet or make a speech in the house of lords saying things were clear.

As it happens, there is no clarity about what the government’s position on Article 16 is – and it seems to change every weekend with the Sunday papers.

And the reason why the position is unclear is that the thinking (or lack of thinking) is unclear.

Fog everywhere, as Charles Dickens would put it.

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These are rules – and not laws.

They are not laws in the scientific sense – like Godwin’s law – which are perhaps affirmed rather than broken.

Nor in the jurisprudential sense, the usual fare of this blog.

Of course, there will be exceptions to these general rules.

But: clear is a good strong word describing a good strong concept.

And if you do take clarity seriously, you will never have to say so aloud.

Is that clear?

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