When culture war combines with constitutional impotence: a warning from history

12th July 2021

The first time I heard about Otto von Bismarck was when I started my history A-level – until then I knew the name ‘Bismarck’ only as a name of a sunk battleship from world war two.

The first thing we learned about Bismarck the politician was that he launched a culture war – a Kulturkampf.

And the first things we learned about this Kulturkampf was that it created needless social divisions, that it was counter-productive and was quickly abandoned, and that Bismarck did not really have a sincere belief in any of it anyway.

Of course, what one gets to know from any A-level history course is often more simplistic than a more nuanced understanding that you can get from further reading and thought.

But this understanding of Bismarck and his Kulturkampf is more useful in understanding the policy of our current government than knowing the names of second world war battleships.

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At the time of my A-levels in the late 1980s, there was the political attack on the ‘loony left’ and then a decade or so later ‘political correctness’ was the target – ‘gone mad’ or otherwise – and now it is ‘deep woke’ or whatever.

And although from time to time this politics of nasty name-calling was translated into policy and law – for example, section 28 – it never seemed (at least to me, in my privileged state) the very essence of government policy until the current government.

Now there are a number of ministers who freely indulge in culture wars – playing like infants with matches.

A report published by the Fabian society today – of which I have only had a preliminary scan – offers a detailed analysis of the current culture wars and those who promote them:

These four summary bullet-points are especially plausible.

And the current configurations of media and politics seem to give each of these ‘peddlers’ more power than they may had before.

The decline in mainstream political parties as broad coalitions, moderating the extremes, means the grievance-mongers can rise quickly to political power – and that illiberal politicians can mobilise their illiberal bases directly and unashamedly.

(The political figures I remember from the late-1980s being the rent-a-quote members of parliament for ‘loony left’ hit-pieces – Beaumont-Dark, Dicks, Dickens – were all safely on the backbenches – now the quotes would come directly from the cabinet.)

The decline in traditional media as gatekeepers on who gets access to broadcasting and publication also mean that the perpetually outraged and the trolls have immediate and effectively limitless reach.

The grievance-mongers, the perpetually outraged and the trolls all existed (if with different labels) before the rise of the internet, but they did not perhaps have the easy access to media and political power.

A recent post on this blog averred that this political culture war has, in turn, constitutional – and constitutionalist – implications.

There is a reckless political belief that there are no constitutional rules or norms which are beyond being gamed for political advantage.

And when culture war combines with constitutional impotence then we have the politics of another German chancellor – you know, that one whose name you still do not need to have studied history to have heard of.

There is a worrying alignment of culture war and constitutional weakness, and unless one or both of these are addressed, it will not be difficult for knaves or fools to exploit their grim opportunity.

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So: will the policy nastiness soon stop?

11th July 2021

Politics is often cyclical.

One goes through a period of illiberalism – and the temptation is to project that into a dismal future of ever-increasing illiberalism.

And then: just as things seem to be inevitably getting worse, there is a swing back to liberalism.

There is a vice versa, of course: periods of self-congratulation and liberal complacency collapse into illiberalism.

Every 2012 London Olympics opening ceremony is not long followed by a Brexit vote.

The difficult – if not impossible – thing is to know the difference.

Are things getting better, or are they going to get worse?

The inclusive solidarity as signified by the current England football team, as complemented by the defeat of the governing party in recent by-elections, could mean that the illiberal tide has stopped advancing.

Hurrah!

Ot it could be a cause for false hopes.

Boo!

One day, historians will posit that whatever does happen next as having been inevitable all along – even though those of us here at the time can only see a range of possibilities.

But as the government keeps pushing forward with illiberal bills – policing, immigration, whatever – and infantile ministers play with the fires of culture war, there are still hopeful signs that the nastiness has not yet fully prevailed.

And, although politics may be cyclical, a great deal is still down to human agency.

The illiberals can be defeated again – and whether they are defeated or not may come down to political actions by liberals now.

There is a tendency sometimes for people to wrongly think things are all over, when there are still goals to be scored.

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Fundamental constitutional reform? We cannot even sort out the hereditary element of the House of Lords

10th July 2021

Sixty years ago, a Labour politician disclaimed a peerage – a viscountcy, no less – so as to sit in the house of commons.

That politician, of course, was Tony Benn who had become Viscount Stansgate on the death of his father.

He won the relevant by-election.

And now, in the early 2020s, we have this by-election:

The viscountcy survived and was claimed by Benn’s son, who is now a legislator in our parliament.

Thus is because there are still hereditary peers in the House of Lords – and, somewhat bizarrely, they are elected by other hereditary peers according to party quotas.

They are the only members of that chamber who are there by winning an election – or by not being opposed in one.

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There are many good reasons to have the house of lords as a check and a balance on the house of commons.

And the quality of the debates and of the amendments makes it difficult for anyone to make a practical (rather than principled) objection.

But that members of the house of lords – capable of initiating and amending legislation – can be there by the hereditary route is not capable of any sensible principled or practical defence.

It is preposterous.

It is 2021 – and even in 1911 it was intended that the hereditary presence in the upper chamber was to be temporary, as you can read in this preamble:

Immediate?

Like the presence of Anglican bishops also in that chamber – even though they are from the ‘established’ church of only one of the four home nations – the presence of hereditary peers is something which can and should be ended easily and, well, immediately.

That is, if anyone in front-line politics was genuinely interested in constitutional reform.

For in sixty years, with governments of all parties, all we have managed is to go from one Labour politician becoming a member of parliament by not being a viscount to another one, in effect, becoming a parliamentarian just because he is one.

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If all this were the second Act of a Brexit play, what will happen next?

9th July 2021

Every event is an end of something and the start of something else, and every event is also between the start and end of yet another story.

So assuming what is happening all around us is the middle part of a story, what will happen next?

We have the characters: the knavish and foolish ministers and their political and media supporters.

They have ‘got Brexit done’ in the first Act of our play.

But in our second Act, we have the challenge of, well, reality.

Things are not going to plan (if it can be called a plan).

Things are not as easy as the Brexiters averred.

Brexiters undertook certain legal obligations that they now do not want, and they made promises that they would rather forget – or renege on.

So in this second Act they are confronted with the consequences of their actions and inactions, and their lies.

Will the third Act give them their just resorts?

Or will they pull off an even bigger con?

And will then they get away with it?

Nobody watching Brexit can tell you for certain.

“Deep Woke”, football, inclusive solidarity – and constitutionalism

8 July 2021

In the last week we have been introduced to the phrase ‘deep woke’.

It was used by my Financial Times colleague Gideon Rachman as an expression to describe the governing party’s disdain to this welcome and inclusive article by Gareth Southgate.

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A deep wookie.

(Source.)

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Southgate’s articulation of solidarity is everything that the facile populist nationalism of the current government and its supporters is not.

No wonder they have a phrase to deride it.

The practical approach of Southgate was set out in this detailed and insightful piece at The Athletic site (which is strongly recommended for its journalism-led content – and so subscribe to it rather than complaining about the paywall):

Reading Kay’s account of organisational change and inclusive solidarity, I was struck by its potential implications in respect of constitutionalism and political behaviour.

https://twitter.com/davidallengreen/status/1412486141568245768

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One of the problems in the current politics of the United Kingdom is the hyper-partisan disregard for constitutional principles and practices that mean politicians of different views can work together.

The prime minister Boris Johnson and his former assistant Dominic Cummings, and their supporters, have promoted the weaponisation of constitutional matters – from misleading the Queen to attacking the judiciary and ignoring the house of commons.

In these toxic Bannon-ite circumstances, the solution is not a written (that is, codified) constitution – for the knaves would just seek to game that too.

The problem is not formal – still less legalistic – but cultural.

There is not a sense of constitutionalism in the government – the understanding that there are political norms and practices higher than party advantage.

Instead, we have childish glee as a government-supporting politician finds a new confrontation to force or contrives a culture war to stoke.

It does not have to be this way.

And it is strange that it takes footballers to point this out – not only the mature inclusivity of Southgate but also, for example, the thoughtful kindness of figures such as Marcus Rashford and Jordan Henderson, among others.

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Boris Johnson as a figure in the folklore traditions of tricksters and unfortunate bargains

7th July 2021

Once upon a time my blog had a different name, and that name was Jack of Kent.

This was somewhat odd, as my name is not Jack and I am not from Kent (though I lived there at the time).

But in those days to give your blog a name was then a fashionable thing to do, like it once was to give yourself a calling name when CB radio was popular.

The Jack of Kent after whom the blog was named is a figure in the folklore of Wales and the west midlands counties.

You can read about the chap here.

In essence: he was was a figure who outwitted the devil by having careful regard to the actual wording of texts.

And so it seemed a good name for a legal blog.

Jack of Kent in turn was part of the folk tradition – and certainly not only in England and Wales – of stories about people caught in diabolical deals.

The tradition that had provided stories as diverse as Faust, Dorian Gray and Robert Johnson.

The unfortunate bargain is a staple of folklores and legends – with those entering into the bargains either suffering or, as in the case of Jack of Kent, irking the devil by holding the devil to its exact terms.

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Another staple, of course, is the trickster – a figure who is in many (if not most) of the traditions around the world – Loki, Puck, Anansi, and so on.

Their trickery is, of course, general – and it is not limited to reneging on obligations.

But what is uncommon – at least to my knowledge – is a story when it is the trickster who unwittingly has got himself or herself into a bad bargain.

Frankly: it is usually the trickster – in devil form – who is the one enticing a gullible or ambitious victim into a deal.

So there may be little guidance in folklore for what would happen when it is the trickster themselves seeking to get out of the deal.

But now we have a real-life example, to make good the possible paucity of folklore versions.

We have the unfolding story of the trickster Boris Johnson and the Brexit agreement.

Of course, Johnson did not realise what he was getting into.

Fo him, a deal – ‘oven-ready’, as he boasted – was the casual tool for other trickery.

Tricks he played on the Conservative MPs whose votes he needed and on the Democratic Unionists, whose voted he realised he did not.

And a trick he played to gain an overall majority in December 2019, with his solemn promise to get Brexit done.

Any problems about this deal were then safely in the future.

But those problems are here now – and they cannot be escaped with his usual bluster and evasions.

An international agreement was signed, and mere trickery will not get him out of it.

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What now?

A Loki may be able to change their nature – at least according to current retellings – but it is doubtful that a Boris Johnson can.

The best scenario is that the trickster fails and is seen to fail – and the story of Brexit can become in part an uplifting morality story about the futility of facile politics.

But there are other possibilities: that the trickster responds with ever-greater tricks – more diversions and misdirections, more lies – creating something that lends itself to a tragedy, or an epic – and not to a mere quaint folklore tale.

Brace, brace.

**

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The myth that the prime minister and this government is ‘libertarian’

6th July 2021

The myth of the libertarianism of Boris Johnson, the prime minister of the United Kingdom, endures.

But it is a myth.

By ‘myth’ I mean that it is a thing that has narrative force, and which some people believe to be true, but it is a thing that is ultimately false.

Johnson is, of course, a political libertine, in that he believes rules – and indeed laws – are for other people.

His government attacks the independent judiciary, the impartial civil service and diplomatic corps and the public service broadcaster, as well as disregarding the speaker of the house of commons, the electoral commission, the ministerial adviser on the civil service code, the panel on appointments to the house of lords, and so on.

And so on.

If his government can get away with weakening or eliminating a check or balance, it shall do so.

It will not be told by anyone what to do.

The politics of Kevin the Teenager.

And this defiance is no doubt the basis of the decision of the government to relax the lockdown, despite various warnings.

Members of the government, and their political supporters, are fed up with being told what to do – especially as the impositions are for the benefit of others.

But.

Is this restless defiance ‘libertarianism’?

Is there a coherent vision of limiting the power of the state vis-a-vis the individual?

This is a government which is seeking to disenfranchise people:

(And here it is nice to have a return of classic David Davis, as opposed to the Brexit variant.)

The government is seeking to ban people:

And this is from just two political Davids alone.

There is also, of course, the similar myth of the prime minister’s liberalism – that he, like Donald Trump, is really at heart just a metropolitan liberal.

Yet many in his cabinet – Priti Patel, Oliver Dowden, Robert Jenrick, Elizabeth Truss – merrily play with the fires of culture wars and the politics of social division and confrontation, rather than promoting the politics of inclusion and solidarity.

The prime minister does not mind or care.

By any serious definition of libertarianism and liberalism this government is neither libertarian nor liberal.

There is no general approach to limiting those with state power to the benefit of those who are affected by state power.

Instead we have a government with occasional twitches and jolts against state power while over time accumulating as much power as possible for the executive and dismantling or dismissing any entity capable of saying ‘no’.

The general approach of this government is authoritarian – though this authoritarianism can be set aside when the power of the state would be for the benefit of others.

There are many words for the general approach of the prime minister and his government, but ‘libertarian’ is not one of them.

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The one incomprehensible and inexplicable thing about Brexit: why did the Democratic Unionist Party support it?

5th July 2021

There will be many things about Brexit which will seem foolish or knavish.

Bad things that will make you sad or mad.

But usually you can work out the ‘why’ about the thing in question – even if you disagree with it, or even loathe it.

It may be that somebody was incompetent or dishonest.

But there will be an explanation of some kind.

There is, however, one thing – at least – which will always be incomprehensible.

Why did the Democratic Unionist Party and other unionists in Northern Ireland support Brexit – either so strongly or at all.

The shared membership of the European Union north and south of the border on the island of Ireland was the best guarantee of the continuation of the union.

There would never be any great urgent need for a border poll, and no great urgent need for any fundamental change, from any perspective.

But by supporting Brexit – and supporting the Conservative government policy of Brexit meaning departure from the single market and the customs union – this has made a border poll more likely and also a vote for a united Ireland more likely.

If a mischievous demon had been tasked with finding the most effective way of sabotaging the union, that demon would also have cheered on first Brexit and then the Theresa May/Boris Johnson approach of departing from the single market and the customs union.

It is a decision so incomprehensible that the two usual explanatory models of bad political decisions – foolishness and knavery – do not provide assistance.

For to posit either as an explanation is to imply that a thing is explicable, rather than inexplicable.

As a scientist would say: it was not even wrong.

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Are there again things stronger than parliamentary majorities? Bogdanor and the question of Unionist civil disobedience or even rebellion

In today’s Sunday Telegraph there is a short, 750-word opinion piece by Vernon Bogdanor, the eminent professor of government.

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Previously I have criticised Bogdanor for not appreciating the constitutional significance of the Good Friday Agreement – see here and here – to which he responded here.

My view is that he has a vision of the constitution that holds that the position before the Good Friday Agreement is the norm from which politics and law have since deviated.

If you look at that exchange, you can form your own opinion on the merit or otherwise of my view.

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Bogdanor’s latest opinion piece is about the Northern Irish high court decision last week in respect of the challenge by unionists of the Northern Irish protocol – a case which this blog touched upon here.

The judgment is some 68-pages but is readable and is worth reading.

Bogdanor spends the first part of his article setting out a general account of the submissions made by the applicants and he then briefly summarises the court’s decision.

His summaries are not the ones that I would write – but they are unexceptional even if not balanced.

And then.

The article takes a turn.

We get to the final three paragraphs, and something happens.

Let’s take these paragraphs in order – and sentence-by-sentence.

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‘The uncodified British constitution allows Parliament to decide that Northern Ireland should be subject to different goods regulations and trading rules from the rest of the UK.’

The second part of that sentence is generally correct – though it is hardly the fault of our uncodified constitution.

Such a decision could easily have taken place under a codified constitution.

It was, of course, a decision for which the government had a mandate in the December 2019 general election as part of the ‘oven-ready deal’.

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‘But Unionists hold a different view of the constitution.

‘They hold that loyalty to Westminster is not unconditional, but dependent upon respect for the Union.’

This is a rather significant thing to say – and it contends that the legitimacy of the United Kingdom state is ultimately contractual – even transactional – as that loyalty is dependent on ‘respect’.

The implication of this would appear to be that if the United Kingdom state is in breach of this contract then the unionists no longer should abide by the law of parliament.

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‘That is why in 1974, a power workers strike by Unionists brought down the Sunningdale Agreement, which had provided for a cross-border Council for Ireland giving the Republic what Unionists believed was excessive influence over Northern Ireland.

This refers to this exercise in civil disobedience.

Is Bogdanor suggesting there could, as a matter of fact, be similar civil disobedience now?

Or is Bogdanor even averring that such civil disobedience would be justified under our uncodified constitution?

It is not easy to tell.

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‘The Unionists are Queen’s rebels.’

I am not sure what Bogdanor means by this.

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‘Where then stands the Protocol?

‘The EU Commission has agreed to the Government’s request to extend the grace period for chilled meat for three months.

‘But that merely kicks the can down the road.

‘In any case, the argument is not about sausages but about whether Northern Ireland is to be cut off from the rest of the UK.’

Here we perhaps go from the salami to the ridiculous.

The dispute is, of course, more than about sausages – but to escalate it to it being about the very union does not necessarily follow.

There are a range of resolutions to this dispute – either through the mechanisms of protocol or by amending it – all of which are consistent with the continued existence of the union.

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‘The court in Belfast is, however, right to this extent.

‘The question of whether the Protocol is constitutional is one not for the courts but for politicians.’

Here the contentions of the opinion piece appear to become confused.

A couple of sentences ago, Bogdaonor was saying that there could (and even perhaps should) be civil disobedience.

Civil disobedience means direct action outwith the processes of political institutions – that is out of the hands of politicians and the formal political process.

Unless, of course, what he means by ‘politicians’ are the leaders of the envisaged civil disobedience.

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‘The case for the Unionists is based on the Enlightenment principle of consent of the governed.’

Is this proposition correct?

The basis of unionism is the positive belief in membership of the United Kingdom, a belief that would still have force even if (or when) it becomes a minority view in Northern Ireland.

If (or when) that does come to pass, would a united Ireland (as endorsed in a border poll) be an imposition on the unionists?

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‘Sadly, the Unionists of Northern Ireland, together with Kurds and Israelis, are deemed not to be entitled to the benefits of this principle by progressive theologians.’

No, I am not sure what this means either.

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‘But it is, nevertheless, a principle which should be enthusiastically championed by the Conservative and Unionist party of the United Kingdom.’

This is the last sentence of the article, and its import is unclear.

The Conservative Party is currently the governing party of the United Kingdom and it stood on an explicit manifesto commitment to get Brexit done by means of the withdrawal agreement – which contained the Northern Irish protocol.

For them to now switch would mean negating a manifesto commitment on which they won an emphatic victory in a general election dominated by the issue of Brexit – a general election that treated the whole of the United Kingdom as a single political unit.

This treatment of the United Kingdom as a single political unit was also, of course, adopted at the time of the 2016 referendum, where a majority the voters of Northern Ireland (like Scotland) voted to stay in the European Union.

Presumably the decision of the parliament of the United Kingdom to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland was also a breach of some enlightenment principle or other.

And when the Conservative Party do not ‘enthusiastically champion’ what Bogdanor wants them to champion, what then?

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Another constitutional principle – also in part from the Enlightenment, as it happens – is that of the rule of law.

The ‘rule of law’ is not mentioned in Bogdanor’s 750-word piece, which still found room for mention of both the ‘Queen’s rebels’ and ‘progressive theologians’, and is a shorter phrase than either.

The contention that unionist loyalty is ultimately conditional despite the law of parliament is reminiscent of “there are things stronger than parliamentary majorities” – a phrase with an unfortunate history in the context of Ireland.

A general strike – such as in 1974 – was not the only way that unionists in Northern Ireland have taken it upon themselves to prevent a perceived breach of the perceived contract between the government and the governed.

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To the extent that Bogdanor is warning in a positive way that peace and stability in Northern Ireland requires sincere and proper regard to the unionists then no sensible person can gainsay him.

But to the extent (if any) that Bogdanor is contending that the uncodified constitution and the principle of the consent of the governed justify a resort to resistance and rebellion (queenly or otherwise, and unarmed or otherwise) and discard for the rule of law then I fear he has fallen into error.

Bogdanor is right to say that political questions should be dealt with politically and not by the courts, but such questions also should be dealt with in accordance with the law.

**

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Should ‘Lord of the Flies’ be the basis of school rules? Today’s #HotTopic

3rd July 2021

Over on Twitter, the educationalist and head teacher Katharine Birbalsingh set out in a thread her thinking about school rules.

So as to reduce the scope for any misrepresentation, here is the thread in full:

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My immediate response to this earnest exposition was to tweet that it was priceless that a thread about academic standards started off by confusing Lord of the Flies with Lord of the Rings.

This was what would have been called in the days of the school standards urged, a ‘howler’.

And this howler prompted treasured memories of Alan Partridge’s Hot Topic:

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Caller:  ‘Well I enjoyed the Hobbit more than “Riverdance”. And I think that lots of boys on an island killing a fat boy is not so enjoyable as Gandalf, with a long white beard.’

Alan Partridge: ‘Okay, if you’ve just joined us, we’re talking about who is the best lord. “Lord of the Rings”, “of the Dance” or “of the Flies”. That’s tonight’s “hot topic”.’

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Katharine Birbalsingh was not amused:

And so, as a courtesy, and with my immediate point having been made, I deleted my tweet.

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But as a further recompense for my irksome tweet, I thought I should set out some thoughts about ‘rules’ – in schools and elsewhere.

After all, this is a blog about law and policy – and laws are rules, and education policy is a policy.

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One important quality that rules should have is, as Katharine Birbalsingh avers, consistency.

But there are other important qualities.

Another important quality of rules is credibility.

If a rule seems daft – indeed absurd – then it will be difficult for the individuals affected to take the rule seriously.

And if a rule is not taken seriously, people will tend not to comply with the rule, and those charged with enforcing the rule will tend to avoid enforcing it.

So, for example:

‘But we don’t enforce silence or sitting up straight in society, so why in schools?’.

The reason why those rules would not be enforced in society is because they would be daft rules, and they would be derided.

There are enough problems in getting people to comply with the legal rules that do exist:

‘Our prisons are packed.’

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Another important quality of rules is that they are proportionate and just – both in their nature and in their enforcement.

But a problem with strict rules – especially those with onerous sanctions – is that there can be no restraint on those enforcing the rules.

The enforcers become the bullies.

Power tends to corrupt, as some old liberal once said, and absolute power corrupts absolutely.

And so we come to the crux of Katharine Birbalsingh’s argument:

‘…the main thing that makes a school good or bad is its CULTURE.  And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.’

[Block capitals in the original.]

One way of thinking about this proposition is to replace the word ‘school’ with the word ‘society’:

‘…the main thing that makes a society good or bad is its CULTURE.  And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.’

In this recasting, you have what is the essence of illiberal totalitarianism.

Your rights are restricted, but it is only for your own good, and to protect you from the Other.

Given that the thread jumps from points about schools to those about society, it is not (I hope) unfair to set out this transposition, and its implications.

Back in the context of a school (or indeed any particular institution within society), the imposition and enforcement of strict rules can be the means by which the few (those who impose and enforce rules) can indeed ‘ruin it for the many’ (those who have to comply with those rules – or else).

Strictness as an end in and of itself can be as much a means of bullying of the ‘many’ as what the strictness purports to address.

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Now we come to the hobgoblins on the beach.

The schoolchildren in Lord of the Flies.

These are the horrors – the marooned turnip-ghosts – from which we need to protect our children.

If adults do not step in, it will go all Lord of the Flies.

https://www.youtube.com/watch?v=3jFqhjaGh30

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A good response to Katharine Birbalsingh’s point here is this tweet:

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Lord of the Flies is one of those books about which anyone who knows of it will have an opinion about it.

And often that opinion will have been formed (or imposed) at school when it was a set text.

There is, of course, not one ultimately correct view of any literary text.

(This is where literature perhaps differs from law, where the conceit is that each legal text has an ultimate correct meaning – ho ho.)

In her thread, Katharine Birbalsingh was positing (or was intending to posit) the island in Lord of the Flies as the world of lawlessness – the anarchy, the chaos that every small-c conservative fears:

‘Because as society has laws, schools need order. Otherwise bullying/harassment. Lord of the [Flies].’

Of course, one of the places in our society which are nearest to the anti-ideal of this lawlessness, where bullying and harassment are rife are, well, prisons:

‘Our prisons are packed. We remove permanently those who won’t obey laws.’

And, other than a few dozen full-life sentence prisoners, the intention is that all convicts – over 80,000 of them – are to return to society after this experience of bullying and harassment.

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The counter-argument to Katharine Birbalsingh’s thread is that the imposition and enforcement of strict rules as an end in themselves can become a means of the ‘bullying and harassment’ that she claims to want to avoid.

Or the rules may become discredited and thereby pointless.

The important qualities for any body of rules are consistency (on which she is right) but also credibility and proportionality.

Otherwise the rules become part of the problem, and not part of the solution.

Rules are crucial – and as a law and policy commentator, I would say that wouldn’t I, else I would have nothing to commentate on – but their strictness is not an important quality.

Credibility and fairness are far more important than strictness.

Rules are an essential means of moderating power relationships – and they prevent those with power from injuring or exploiting those without power.

The principle of the rule of law means that legal rules bind the mighty as well as the weak.

And so to function properly rules need to have legitimacy, and not just firmness.

For, when rules lose their legitimacy…

…it all goes a bit Lord of the Flies:

‘“We’ll have rules!” [Jack] cried excitedly. “Lots of rules! Then when anyone breaks ’em–”

[…]

‘Jack was the first to make himself heard. He had not got the conch and thus spoke against the rules; but nobody minded.

[…]

‘“The rules!” shouted Ralph.

‘“You’re breaking the rules!”

‘“Who cares?”’

Who indeed.

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