No UK political leaders of any party seem to be taking Northern Ireland seriously

30th November 2021

Yesterday the opposition Labour party had a reshuffle of its shadow cabinet.

This would not usually be anything of note for this blog, as it is the stuff of politics rather than of policy and law.

But there was one change that caught the eye.

The shadow Northern Irish secretary Louise Haigh was switched to the transport brief.

This was, to say the least, a shame.

Haigh had developed expertise and insights into the post-Brexit problems for Northern Ireland and the border dividing the island of Ireland.

She made a particular point of visiting Northern Ireland and Ireland regularly, so as to listen and understand the issues surrounding the Northern Irish Agreement.

She also had not only read the Good Friday Agreement (unlike some ministers), but she also understood it.

There was no better opposition politician to be in place while during reckless, erratic antics of Brexit minister David Frost and his constant threats to trigger Article 16 for no good reason.

And now, all that is lost, and the opposition front bench has to start again.

Haigh, of course, will no doubt do well on transport policy – especially as a northern member of parliament affected by this government’s reversals on rail infrastructure.

But something has been lost, and the necessary impression is that the Labour leader Keir Starmer, like the government front bench, does not take the Northern Irish issue that seriously.

As Dr Laura McAtackney avers:

These are all the shadow Northern Irish secretaries since the Brexit referendum:

And these are all the Northern Irish secretaries:

The turnover of Northern Irish secretaries and shadow Northern Irish secretaries has not only been at a time of Brexit and post-Brexit uncertainty but also when for about half the period since the referendum there has been no devolved assembly in Northern Ireland.

Could the main two political parties show any less interest in Northern Ireland?

If and when there is a border poll, and if and when there is a majority in the poll for a united Ireland, British political leaders will only have themselves to blame.

And indeed by any such a poll in just a few years, at the current rate we probably will have had another three or four Northern Irish secretaries and shadow Northern Irish secretaries.

The consequences of Brexit on Northern Ireland and the issue of the Irish border should be taken with the utmost seriousness by the leaders of the main British political parties – and they, of course, will protest that they do.

But rapid turnover of both Northern Irish secretaries and shadow Northern Irish secretaries shows otherwise.

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How a new formal lockdown will be a test of legal legitimacy

29th November 2021

As I type this post in a public place, only about three-quarters of those around me are also wearing masks.

In general, I am one of the many who do not like wearing masks but do so anyway for the sake of others.

But against that many there are the few who do not wear masks, of whom a small proportion are, of course, exempt.

That means there is a substantial number of people who do not wear masks and do not want to do so.

If and when a dangerous new variant of coronavirus comes along, the law will revert to making it mandatory to wear masks in many public places.

It will cease to be matter for personal choice.

It will instead become a matter (again) for the criminal law and state coercion.

But will it make any difference?

Or have sufficient numbers of people become resistant to masks so as to make any new criminal law unenforceable?

And, if so, where does that leave the rule of law and the legitimacy of public health regulations?

What will be the approach to enforcement by the police, if any?

The strange – perhaps ironic – thing about all this is that not so long ago those who protested against the state wore masks in defiance, inspired in part by V for Vendetta.

And now the defiant act against the state is to take masks off.

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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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