You say you want a ‘written constitution’? Here are four online places where it is already written down.

26th March 2021

Whenever a constitutional wrong becomes apparent there is a reflexive demand for a ‘written [or codified] constitution’.

Having a written constitution, it would seem, would just make things better  – rather than, as is my view, probably make things just as bad but differently.

(On my scepticism about written constitutions as a panacea see my Prospect piece.)

But this post comes at the topic from a different angle.

Those who demand a written constitution often seem unaware that it is already set out in writing – if you know where to look.

And just as those who wish for a month of Sundays usually do not know what to do with a spare afternoon, those who pine for a written constitution do not read where the constitution is already set out in writing.

Here are four places where you can read the constitution of the United Kingdom online which you may or may not already now about.

Note, however, that each of these are practical rather than academic or theoretical materials.

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The first is the Cabinet Manual – which governments (of all parties) since 2010 have averred sets ‘out the main laws, rules and conventions affecting the conduct and operation of government’.

Of course, this is the government’s own view of the constitutional arrangements in which it operates – but it also is a comprehensive and clear overview of how the various elements of state are at least supposed to fit together.

You can click and read the pdf here.

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So much for the ‘high level’ constitutional summary – now we turn to how public bodies make (or should make) decisions.

Here we have a wonderful publication published for government lawyers called ‘the Judge over your shoulder’ – which is described formally as ‘guidance to help you understand the legal environment in which government decisions are made and assess the impact of legal risk’ – and is described informally as pretty much a god-send.

This publication set out how decisions and actions by public bodies can be rendered ‘judge-proof’ – that is lawful – and it is updated from time to time.

You can click and read the pdf here.

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We move on now from the executive to the legislature, that is parliament.

The key text for understanding what parliament can and cannot do – and the text of which can make a real difference at important political moments – is known as “Erskine May’.

More formally ‘a treatise on the law, privileges, proceedings and usage of parliament’ – this document was for a long time (indeed for far too long) only available to those who knew of its existence and could afford the prohibitive hundreds of pounds that it cost to purchase in hard form.

Such inaccessibility was an outrage – and so it was a boon when the entire text was placed online.

You can click and read it here.

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And now, finally to the judiciary.

In particular to the the power of the courts to review (and sometimes quash) both government decisions and even statutory instruments made under acts of parliament (but not the acts of parliament itself).

The ‘Judge over your shoulder’ gives the government’s view – but to see it from the perspective of the courts (of England and Wales) you need to know about ‘Part 54’ of the civil procedure rules – and its attendant practice direction.

This is, of course, written in legalese – but they also provide an understanding of how the courts would go about holding the other elements of the state to account.

A grasp of what it actually means when you read that ‘the government has been taken to be court’ is invaluable to anyone following the tensions between ministers (and other public officials) and the judges.

You can read Part 54 here and its attendant practice direction here.

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Of course, these are not a substitute for a codified constitution – but they do set out in writing what – at least – should happen in the constitutional affairs.

Enjoy clicking and reading.

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Why the Deloitte clause for drafting ministerial answers is a further assault on civil service norms

25th March 2021

One of the marvels of modern story telling is, of course, Bagpuss.

And one of the most instructive stories of Bagpuss is The Mouse Mill, where the mice devise and construct a mill for the provision of chocolate biscuits.

[Spoiler warning for episode eight of Bagpuss.]

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https://www.youtube.com/watch?v=XbD_notXRVQ

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The mice, however, are not making the chocolate biscuits out of butterbeans and breadcrumbs as they aver.

They are instead simply recycling chocolate biscuits, thereby controlling both ends of a supply chain.

Until now, the mice’s chocolate biscuit factory was perhaps the most ingenious method yet conceived of having it both ways in the provision of a good or a service.

But now we have the Deloitte contract for track-and-trace, where they appear to be able to answer parliamentary questions and freedom of information requests about their very own services.

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Over at the Huffington Post, the experienced and well-regarded political journalist Paul Waugh has disclosed that Deloitte are drafting the answers to parliamentary questions in respect of matters for which Deloitte are providing the government with services.

I have not seen the contracts, but on the safe assumption that Waugh is a reliable news source, we can trust the following report (emphasis added):

‘Four different contracts show that Test and Trace has been using Deloitte for “general management consultancy services” ranging from building testing capacity to stockpiling and logistics oversight.

‘But buried within the contracts are details of help provided with PR and communications, with a requirement to “draft and respond to parliamentary questions, Freedom of Information requests, media queries and other reactive requests” and to “support lines to take and Q&A’s in anticipation of queries”.’

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You do not need to have suffered years of experience with government contracts to know that legalese here quoted by Waugh rings true.

It is certainly not the sort of wording anyone would invent – and so it is no doubt the case that this is an actual contractual provision.

And the legalese is precise – crucially the contractual wording is not about simply providing the information that would allow the civil servants to draft and respond to parliamentary questions and freedom of information requests.

Had that been the purpose and intention of that contractual provision, then that is what the provision would have said.

Instead the parties chose to use wording where the external provider is obliged to draft and respond – and not the civil servants.

As you will see, this detail matters when we come to the government’s rejoinder.

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As Gemma Abbott, legal director of the Good Law Project, is quoted as saying:

‘We have a government so addicted to outsourcing that it has even outsourced being held to account.

‘If a member of the public submits an FOI request, or an MP asks a parliamentary question about the government spending millions on contracts with Deloitte, it seems that it’s Deloitte at the other end marking its own homework – it is beyond parody.’

Her point is well made.

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‘…the mice put breadcrumbs and butterbeans in the top, and they work the mill, and out come the chocolate biscuits…’

– Bagpuss

‘Impossible, impossible, it isn’t true. I am going round the back to what is happening’

– Professor Yaffle

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There is, of course, nothing wrong with any consultancy firm providing services to the government – and, indeed, there is an advantage to certain tasks being allocated to external professional advisers and service providers.

But there are certain tasks which should not be contracted-out and outsourced.

The problem here is not with Deloitte offering to provide the service of providing answers to parliamentary questions and freedom of information requests – for they are a provider of services – but the agreement of the government that this job be undertaken by external providers.

The real culpability lies with the government.

The effect of the transaction is that a service provider will be responsible for providing “draft[s] and respon[ses] to parliamentary questions, Freedom of Information requests, media queries and other reactive requests” about their very own services.

This cannot be right in principle.

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At the end of the Huffington Post story there is a rejoinder from the government:

‘The government employs contractors in the same vein that private businesses do and responsibility for answering parliamentary questions, freedom of information requests and media enquiries rests firmly with a team of civil service communications professionals within the Department of Health and Social Care. Every single response is subject to the highest levels of scrutiny to ensure they are both factual and detailed.’

If this was the case, then it is difficult (if not impossible) to explain the legalese quoted in the news report.

Either the contractual wording sets out the true intention of the government or that press statement does – both cannot be (equally) true.

And if the government’s rejoinder is true, then the legal drafting quoted in the news report would (and could) have been different.

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Why does this matter?

The constitutional significance of this is set out well in a thread by Alex Thomas of the Institute of Government:

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So the contractual provisions – and presumably the services performed thereunder – are an assault on the norms of the civil service.

Another assault, to go with all the others.

This one, however, does not seem especially directed or deliberate – just a shrug and a signing of some contracts.

We do not even get the glamour of a chocolate factory, or the elusive near-satisfaction of chocolate biscuits being procured only to then be taken away.

The government should not sign any further contracts with the wording of this clause.

There should, of course, be a contractual obligation on service providers to assist the government in respect of freedom of information requests and parliamentary questions and to provide necessary information.

But contracting to provide the service of ‘drafting and responding’ is a significant step too far.

Having control of both ends of the line of accountability is inappropriate – a service provider to the government should not be ‘drafting and responding’ to queries about that service.

One should not be able to both have a chocolate biscuit and to eat it. 

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Declaration: I was a central government lawyer 2003-2005 dealing with freedom of information requests on central government commercial matters.

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The performative nastiness of the Home Secretary

24th March 2021

The office of home secretary is one that often does not bring the best out of its occupants.

Indeed, for a while the phrase ‘former Labour home secretary’ was one of the most illiberal phrases in the political lexicon.

Once could think of exceptions – Roy Jenkins, of course, and to a limited extent William Whitelaw and Douglas Hurd (though the latter two only seem more ‘liberal’ by comparison).

On the whole, however, just as certain experiences bring out the worst in human nature, being home secretary can bring out the worst in any politician.

But.

At least former home secretaries had the grace to pretend otherwise.

Remember the grave sorrowful face of, say, Jack Straw as he solemnly warned of the need of some ‘tough new measures’ – enticing you to nod-along with his sense of national emergency.

And Theresa May as home secretary even once stunned the police federation with a full-on speech about police reform.

In essence: the home office was a tough-old job, but some politician had to do it.

But what home secretaries did not do – at least not in public – is revel in the capacity of the office to cause harm and upset.

And so we come to the current home secretary.

Today’s news is typical of their approach:

Before May was home secretary there was a famous conference speech – framed in cautionary terms – about the Conservative Party becoming the ‘Nasty Party’.

For the current home secretary that speech has instead become a manifesto.

And as someone has averred on Twitter, this is not exceptional to the United Kingdom:

https://twitter.com/DaemonAAc/status/1374633353031389185

The Cruelty Is The Point.

(See here.)

What an unpleasant vista this is on our current politics.

The important thing to note, however, is not so much (yet) that the powers and objectives of the home office have profoundly changed.

These are just about the sort of policies that other home secretaries may have adopted – and not only Conservative politicians.

What seems novel (at least to me) is the sheer glee which accompanies the announcement and promotion of each policy announcement.

One shudders to think what the current home secretary would do publicly if the office still have the power to (not) commute a death penalty.

And rhetorical change can have substantial consequences: each great office of state is subject to and can shape public expectations – that the chancellor, for example, can and will do things in respect of the economy generally, and with taxation and spending in particular.

The more the home office is loudly deployed as a vehicle for nasty policies, presumably the more the demand for more such policies.

And so the approach of the current home secretary cannot be written-off as just vile verbiage: it may and perhaps will lead to more repressive policies.

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All this is an example of a more general problem with the current political arrangements of the United Kingdom.

The lack of political and constitutional self-restraint – and the removal of the gate-keepers.

There has never really been anything before – other than custom and decency – that has prevented a home secretary exploiting their office in this way.

Just as there was nothing which stopped the prime minister from using the prerogative powers in various unfortunate and unwise ways.

What the home secretary and some other ministers are now doing is showing openly what the constitution of the United Kingdom has long been capable of permitting.

And so what is demonstrated by this exercise of performative politics is not just the politics of the current home secretary – but that there is nothing in place that can prevent such things.

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Union Jacks being placed indoors in politicians’ offices is a constitutional distress signal

23rd March 2021

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“They’re selling hippy wigs in Woolworths.”

– overheard in Camden Town, 1969

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In thirty-five years of reading and writing about the constitutional history of the United Kingdom I have never given a second thought to the Union Jack (or Union Flag).

To the extent I thought about flags at all, I just had a vague notion that they were things which people in other countries had – like the fact they put their country names on postage stamps while the Royal Mail does not.

It was not so much that I felt strongly against a flag – I just did not really think about it at all.

And now it seems to be the most potent political issue of our age.

It is all very strange.

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Let us start with the law providing that the Union Jack is our national flag.

There is no law providing the Union Jack is our national flag.

Indeed, it seems there was doubt that the Union Jack was our national flag until the early twentieth century.

Here is a revealing exchange between three earls in the house of lords in 1908:

From that exchange we can infer that in the Victorian period the Union Jack was not regarded widely as the national flag – else there would be no need for such a debate and clarification in 1908.

So it may not even be Victorian nostalgia – but something of which has only been a big thing for a hundred years or so.

Another ‘invention of tradition’ as some historians would say.

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There are two things, however, which one must know about the Union Jack.

The first is that some people will have Very Strong Opinions on whether it is called a Union Jack or a Union Flag – though those three earls of the realm were quite at ease calling it a jack.

The second is that the same people are also likely to have Very Strong Opinions on which way up the flag should be flown.

This blog does not have such strong opinions.

But the one thing which seems to be overlooked in the current heated political controversy about flags is that, well, they are supposed to be flown outside – on land or at sea.

That is the point of a flag, if you think about it.

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To have political arguments about flags in indoor rooms seems, on this basis, to be rather weird.

It is like having a row about closed umbrellas.

Our ancestors did not give us much guidance about the Union Jacks being indoors as political props, as it may not have occurred to them that a flag would ever be used for such a purpose.

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That said, there is some trace of flags in our legislation.

In schedule 1 of the grandly titled Town and Country Planning (Control of Advertisements) (England) Regulations 2007, there is this provision for things that do not need consent:

But nothing about flags inside.

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This lack of any formal recognition of a national flag is not surprising in those often casual arrangement that we describe as the constitution of the United Kingdom.

A thing can be – and presumably cease to be – a national flag without any legislative intervention.

A thing can become official in an unofficial way.

Whether this relaxed approach will continue in this age of hyper-partisanship and performative nationalism is unlikely.

One can quite imagine a new act of parliament ‘enshrining’ the Union Jack as our national flag, with ‘tough new offences’ to ‘crack down’ on disrespect.

One wonders how we managed so far.

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The timing of this phenomenon is telling.

By reason of Brexit, there is a non-trivial likelihood that there will be Irish unification and maybe also Scottish independence in the next few years.

So there is a real risk that two of the crosses on the Union Jack will soon not be there if the flag were ever to be adjusted for accuracy.

(Though one can quite imagine England carrying on with the Union Jack even with the loss of Northern Ireland and Scotland – like those pop bands that still tour with just one original member.)

And although it is easy to mock this flag-showery, it is not without political purchase, as my wise Financial Times colleague Robert Shrimsley avers:

But taking this sensible warning seriously, there still seems symbolism in this, well, symbolism.

Lore tells us that a Union Jack flown upside down was a sign of distress.

It is almost as if the current prevalence of indoor Union Jacks – upside down or otherwise – is itself a distress signal – and one for the future of the Union.

Brace, brace.

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Time for a peer review – why focusing on just fixing the problem of hereditary peers would not be enough

22nd June 2021

The Sunday Times this weekend did a good piece of journalism on the hereditary peers in the house of lords.

Who could possibly disagree?

Well – certainly not this blog, in principle.

Removal of the hereditary element in the house of lords is one of many ‘micro’ reforms of the constitution of the United Kingdom which should be done – regardless of the interminable ‘debate’ on the merits of a codified constitution.

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Yet.

Here are some things to think about as you nod-along.

There are other (perhaps even worse) problems with the composition of the house of lords: the power of patronage of party leaders – especially the prime minister, the rights of bishops of just one denomination of one church to have twenty-six votes, the number of life peers who do not take any active role but can be summoned to vote, and so on.

And contrary to the impression given by the headline of that piece: ninety of the ninety-two hereditary peers sitting in the house of lords do not have automatic seats – they are elected by the hereditary peers generally.

This means, somewhat paradoxically, they are the only members of the house of lords that are there by means of any sort of electoral process.

They are also free from any allegiance to any party manager or any debt arising from an act of patronage.

In other words: they are part of the legislature outside the control of the government or party leaders.

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But.

Whatever the case that can be made for hereditary peers in the house of lords, they still need to go – and sooner rather than later.

Some constitutional abominations are too awful to be tolerated.

And removing the hereditary peers would also make the house of lords more, shall we say, ‘legitimate’ in its constitutional role.

(And can we please get rid of all the mock-chivalric-pseudo-feudal-medieval titles while we are at it – if you really want to be a lord or lady of something, join a historical enactment society.)

All that said: there should not be the removal of one of the genuinely independent features of the house of lords without regard to the overall balance.

There is little to be gained from clapping and cheering the removal of the hereditary peers if the effect would be to tilt the balance of the house of the lords towards more governmental control.

For, as the constitution of the United Kingdom currently stands, the house of lords is the most effective check and balance to a house of commons dominated by the government.

The house of lords cannot block any legislation – and nor should it, as it does not have any democratic basis – but it can force the house of commons to think again and more carefully about its legislative proposals.

And often the reasoned amendments of the house of lords are accepted by the house of commons – and, indeed, often the house of lords amendments can provide convenient cover to ministers who eventually realise that the initial proposals were unsound.

Given that the most important constitutional function of the house of lords is that of a check and a balance – rather than to be a chamber with a rival democratic basis – then the most important quality is that it should be independent.

Stripping out one feature that provides any independence in the upper chamber should thereby be matched by other measures to maintain that independence.

That is why there should be a more general (ahem) peer review.

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And luckily, there has actually been a useful review.

The Burns report of 2017 puts forward sensible and persuasive proposals for reforming the composition of the house of lords while keeping its independent constitutional role.

The key proposals are to limit the size of the upper chamber and to convert lifetime membership (of the life peers) to a single term of fifteen years.

That report, however, did not make direct proposals for the hereditary peers and bishops.

But, in principle, there is no reason why such a reform could not also mean the removal of the hereditary and spiritual peers – as the overriding objective of a balanced upper chamber outside the domination of any government of the day would be retained.

So – yes, nod-along with the attack on the hereditary elements and, also yes, let’s get rid of them – but when the nodding-along ends, let us also make sure we have not ended up with a less independent upper house in our current constitutional arrangements.

***

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The Clown and the Constitution

21st March 2021

Sometimes the usual superlatives do not seem enough – ‘brilliant’, ‘excellent’, ‘outstanding’ do not give justice to a thing.

So all I can aver is that the article ‘The clown king: how Boris Johnson made it by playing the fool’ by Edward Docx is perhaps best piece of contemporary political observation and analysis I have come across for a long time.

If you have not read it, go and read it now – else the rest of this post will make little sense.

And if you have read it, go and read it again.

This is because there is no way that a summary of that article by me will be adequate.

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Everything Docx says that touches on certain law and policy issues over the last few years is true.

Brexit is indeed ‘an act of symbolism at the expense of everything else.’

The lack of seriousness about law as an illustration of the the lack of seriousness generally:  ‘the teetering unicycle of Johnsonian buffoonery – A-levels, school meals, foreign health workers and more. A country of tumbling catastrophes. Trampolining absurdities. Go to work. Don’t go to work. A country proroguing parliament illegally here, trying to break international law there.’

The dislocation between the heady claims of political language and the mundane realities of political substance: ‘we became a country in which there was only the mock heroic – a “world beating” country that would “strain every sinew” and give “cast-iron guarantees” while bungling its plans and breaking its promises. A country “ready to take off its Clark Kent spectacles” and act “as the supercharged champion” of X, Y, Z. A country on stilts – pretending that we had a test and trace system that was head and shoulders above the rest of the world.’

The nature of the campaign for Brexit and the insincerity of Boris Johnson’s role: ‘the likes of Iain Duncan Smith, David Davis, Steve Baker, Nigel Farage, Mark Francois, John Redwood, Gisela Stuart, Kate Hoey et al – were never more than a dim congregation of rude mechanicals. And what they required to win was someone who instinctively understood how to conduct a form of protracted public masque.’ 

And so on.

Docx’s depiction of the character and approach of the current prime minister is unmatched.

Falstaff, the Fool, the Clown, has indeed taken over as king.

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At the end of Docx’s article, however, he posits that there are hard challenges that cannot (easily) be avoided by the clowning prime minister:

‘The difficulty for the clown is that once truth and seriousness have been merrily shattered, they cannot be put back together and served up anew. Or, to put it another way, the buffoon who has just entertained the audience by smashing all the plates cannot now say that he proposes to use them to serve up a banquet in honour of himself becoming a wise and honest king. Everyone can see: the plates are all in pieces on the floor.’

One of these challenges is more policy than law – the many serious failures of the government United Kingdom in respect of the Covid pandemic.

Here Docx points out that Johnson is now seeking to tell a story so as to lift him out of any culpability:

‘Are we supposed to forget this legacy and “move on”? That is what Johnson is now tacitly suggesting. Like all storytellers, he knows the public remember endings, less so beginnings and seldom the middle. He did all he can, he says. He knows it’s not true, but that is what he is selling.’

Here Docx appears to be doubtful of his own plate-smashing analogy.

People may elect not to see the damage: Johnson can – and may well will – distract us by more plate-smashing: world-beating plate-crashing, no doubt.

The other challenge, however, is squarely constitutional.

And that is the future of the union.

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Docx rightly observes that there is a pending constitutional crunch: ‘the realm really is still falling apart. Johnson’s predicament could not be more starkly illuminated than by the next existential challenge he faces: to do with the very nature of the union of England, Scotland, Wales and Northern Ireland.’ 

Johnson’s predicament here affirms the truth of the old Hebrew proverb about the difference between a clever person and a wise person: a clever person can get out of situations that a wise person would not get into.

The lack of wisdom here, however, is not that just of Johnson.

The folly of the in/out referendum was that of David Cameron, and the infliction of a ‘hard Brexit’ (with the United Kingdom outside the European Union customs union and single market) was by Theresa May.

Wiser heads – who realised the precariousness and fragility of constitutional arrangements – would not have risked the future of the United Kingdom, as Cameron did, on one turn of pitch-and-toss.

Nor would they have insisted on an extreme form of Brexit in the first few months after the referendum, as May did.

Johnson was not responsible for either of those two calamitous decisions, which in turn have created what Docx rightly calls the ‘existential challenge’ of keeping the union together.

The fool may have become prime minister – but only after the two previous prime ministers had made the most foolish of decisions.

And given those foolish decisions – and their necessary implications for the position of Northern Ireland – then there is not a great deal that Johnson can do.

The clown has not so much taken over the stage: it is more that supposedly wiser rulers have left the stage to the clown alone.

And, of course, Johnson will approach the problem with his strategic dishonesty and tactical buffoonery – but, frankly, what else has he got?

The constitutional logic of the Brexit that was in place before he became prime minister will continue to unfold.

Slapping sticks is perhaps all that is left.

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All this said: never underestimate the trickster.

A clever person may be the one who gets out of situations that a wise person would not have got into – but the clever person may still do so all the same.

And as Docx avers: ‘the clown is always in a deeper relationship with the audience than with his ostensible subject.’

The plates that may now smash will be as big as the union itself.

The United Kingdom of Great Britain and Northern Ireland may not last another few years in either form or substance.

But the clown-king may still be able to get away with it – and still be prime minister of whatever is left, with claps and cheers for more.

The audience may never see or care what damage is done in the meantime.

And this is not just because of the skills and talents of the clown-king but because of the stage we are now at in the story of Brexit and the United Kingdom – to use a phrase of Johnson’s earnest antonym as prime minister – there may be no real alternative.

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“Will it please you to see the epilogue, or to hear a Bergomask dance between two of our company?”

– Act V, Scene 1, A Midsummer Night’s Dream

 

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Clause 59 and ‘TwitterJokeTrial’ – a warning from history

Spring Equinox, 2021

 

Some of those defending clause 59 of the Police, Crime, Sentencing, Courts and Anything Else the Government Can Get Away With Bill point out that one purpose of the provision is to set out in statute the old common law offence of public nuisance.

The view is that the enactment is merely an exercise in modernisation and simplification – that there is nothing for us to worry our heads about.

And as this blog has already explained, part of the origin of the proposal is a Law Commission report from 2015.

But.

There is a law more powerful than any statute or common law right, more powerful even than any great charter.

And that is the law of unintended consequences.

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Here is a story.

There was once an obscure provision in the Post Office (Amendment Act) 1935 that, in turn, amended the Post Office Act 1908:

And for seventy years the offence was hardly noticed, though it was reenacted from time to time as telecommunications legislation was, ahem, modernised and simplified.

Then in 2003 it was reenacted yet again, but in terms that (without any proper consideration) ended up covering the entire internet:

But it was still not really noticed.

Until one day some bright spark at the crown prosecution service realised the provision’s broad terms were a prosecutorial gift in the age of social media.

This resulted in the once-famous TwitterJokeTrial case and its various appeals, which ended with a hearing before the lord chief justice.

In allowing the appeal against conviction, the lord chief justice said:

In other words: the intention of the 2003 reenactment had not been to widen the scope of the offence in respect of fundamental freedoms.

(Declaration of interest: I was the appeal solicitor before the high court in that case.)

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Coming back to clause 59, it may well be that the intended effect of clause 59 is to merely restate the existing law.

Some are convinced by this view: 

But.

What we will have, once enacted, will be an offence – that is, an arrestable and chargeable offence – which, on the face of it is in extraordinary broad terms, using such everyday language as ‘annoyance’.

It may be that the higher courts will, as any appeals come in, apply the technical meaning in property law of ‘annoyance’.

The law in practice is not that (only) of the judgments of the high court and above: it is what police officers and crown prosecution service case workers believe the law to be and see the law as it is set out.

It is also can be what zealous complainants to the police say it to be.

And none of these people will – understandable and perhaps rightly – be well versed in the case law of ‘annoyance’ in respect of the old law of public nuisance.

They will just see an arresting and charging power – and a power to set conditions.

So it should not be left to the courts ‘to apply the old caselaw’.

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Criminal offences – and their limits – need to be clear and precise to everyone involved: citizen, complainant, arresting officer, crown prosecution service case worker, busy junior legal aid solicitor giving advice on plea – as well as to erudite barristers and even more erudite judges.

And so: even taking the point about this being a mere modernisation and simplification at its highest, clause 59 currently contains worryingly wide drafting.

Most people reading clause 59 by itself will believe there is a criminal offence – with a sentence of up to ten years – for causing mere annoyance.

Even if that it not the government’s intention, that is how the current provision can be read.

And because of this, people may suffer the life-changing events of being arrested and being charged – and may even plead guilty.

Unless, of course, that is the government’s real intention.

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Whoopsie: the government did not get the commission report on judicial review that it was hoping for

 19th March 2021

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‘Toulouse’s suggestion was not what Audrey wanted to hear.’

– Moulin Rouge

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Sometimes – just sometimes – in the world of law and policy there are moments when welcome things do happen.

Back in August 2020 this blog covered the government’s announcement of an ‘independent panel to look at judicial review’.

It did not seem a promising move: just an attempt by the government to find cover for an assault on judicial review by means of a hand-picked commission.

But.

It is sometimes strange how things turn out.

The commission has now reported – and just a skim of the report shows that the government did not get the report it was hoping for.

In large part, the report appears to be an affirmation of the current position of judicial review – with minor changes that it is hard to feel strongly about.

(A close read of the report may dislodge this happy impression – but that is this blog’s preliminary view.)

The concluding observations of the report could have even be a post on this very blog:

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In receipt of the report, the Ministry of Justice decided that it would try harder to find people to tell them what they wanted to hear.

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‘We want to keep this conversation going.’

We can bet they do.

Like a frustrated news show producer who cannot find any talking-head expert to say the desired things, the Ministry of Justice is now resorting to a Vox Pox.

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At bottom, the problem here is a mismatch, a dislocation – such as those recently discussed on this blog.

The discrepancy is between the heady rhetoric of ‘activist judges’ – a rhetoric that has a life of its own – and the mundane reality of what actually happens in courts.

The commission, to their credit, looked hard and reported on what they saw.

Yet those Ministry of Justice, to their discredit, want to keep on until they are told what they want to hear.

Perhaps the Ministry of Justice will get what they want – and then move to limit judicial review.

One can never be optimistic about law and policy for very long, and the illiberals and authoritarians are relentless.

But this report is a welcome break from the push towards populist authoritarianism in our political and legal affairs.

**

For a more detailed account of the just-published report, see Paul Daly’s blogpost here.

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What now stands between a populist authoritarian government with a huge majority and a full scale assault on civil liberties and human rights?

 18th March 2021

Earlier this week the house of commons passed the government’s illiberal Police, Crime, Sentencing, and Courts Bill with a ninety-six majority.

So given this high majority the obvious question is what would actually stop or hinder a populist and authoritarian government from seeking to pass primary legislation that would remove or undermine basic legal protections and rights? 

This is not a trivial or academic question.

The usual ‘gatekeepers’ that would prevent a government from not even proposing such things are no longer in place.

For example, the offices of lord chancellor and attorney-general are occupied by politicians who happen to be lawyers but have no credentials in protecting either the rule of law or fundamental freedoms.

And we have a government heady with ‘will of the people’ rhetoric that has developed a taste for attacking or disregarding what checks and balances the constitution of the United Kingdom has to offer.

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In constitutional theory, the next check – once legislation is proposed – is the house of commons.

But with such a large majority – and the tendency for even supposedly ‘libertarian’ government backbenchers to vote in accordance with the whip and accept limp front-bench assurances – there is no realistic way that the house of commons is any check or balance on this government.

And if the opposition do oppose – which cannot be assumed, given the official opposition’s habit of not opposing things for tactical and strategic reasons – then such opposition can and will be weaponised by hyper-partisan ministers and their media supporters.

*

Next there is the house of lords, where (fortunately) the government does not have an in-built majority.

And the house of lords can vote things down and pass amendments.

But.

When constitutional push comes to political shove, the house of lords will usually backdown once the house of commons has reaffirmed its support for a measure.

This is in part that the the house of lords has a, well, constitutional disability in respect of confronting the democratic house.

There will only be a few occasions where the house of lords will use its power to delay legislation under the parliament acts.

And that power is that: to delay.

A determined government, with the support of the house of commons, will get its legislative way in the end.

A government in these circumstances would not even need to resort to an ‘enabling act’ – as it would get through any desired illiberal legislation anyway.

There are a very few exceptions to this: such as a bill containing any provision to extend the maximum duration of a parliament beyond five years.

But otherwise: there is nothing that can ultimately stop an illiberal bill eventually becoming an act of parliament.

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And then we come to the courts.

Here we have another problem.

Because of the doctrine of parliamentary supremacy there is nothing that the courts would be able to do – as long as the government has ensured that the statutory drafting is precise and tight.

The human rights act, for example, provides no legal basis for an act of parliament to be disapplied.

The judgments of the European court of human rights are not binding.

The European communities act, which did enable a court to disapply an act of parliament on certain grounds, is no longer part of domestic law.

‘Common law rights’ capable of frustrating an act of parliament exist only in undergraduate law student essays.

Even with the powers the courts do have, the government is seeking to limit access to judicial review by all possible means: in substantive law, by procedural restrictions, and by denying legal aid.

(And the courts have taken an illiberal turn anyway: and we now have a president of the supreme court, in an unanimous judgment, telling the court of appeal off for not according ‘respect’ to a home secretary’s assessments.)

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Before the general election of December 2019 we had the unpleasant predicament of a government that was populist and authoritarian – but at least it did not have a parliamentary majority.

Now, by reason of that general election and its result, we have a government with the same illiberal instincts but with all the sheer legal force of parliamentary supremacy at their disposal.

That the opposition parties facilitated an early general election in December 2019 was a moment of political madness.

And now – until at least December 2024 – we have a government that is able with ease to get the house of commons to pass the most illiberal legislation – and there is ultimately nothing that either the house of lords or the courts can do – as long as the legislation is precise and tight.

Brace, brace.

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The problem of the dislocation between political language and policy substance

17th March 2021

The problem of political language not being tied firmly to particular meanings is not a new one:

‘From where Winston stood it was just possible to read, picked out on its white face in elegant lettering, the three slogans of the Party:

WAR IS PEACE

FREEDOM IS SLAVERY

IGNORANCE IS STRENGTH’

Indeed, it is no doubt a problem as old as political discourse itself.

But the fact that it is not a novelty does not make it any less irksome.

And nor does it mean that its instances should be left unremarked.

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Currently there is a severe dislocation between political words and things.

Those ‘free speech warriors’ who decry ‘cancel culture’ often seem at ease with a government putting forward legislation that is capable of prohibiting any form of effective protest.

There are also the ‘classical liberals’ who commend ‘free trade’ who are in support of Brexit, which is the biggest imposition of trade barriers on the United Kingdom in modern history – and has even led to a trade barrier down the Irish Sea.

And there are the champions of the liberties under Magna Carta and of ‘common law rights’ who also somehow support restrictions on access to the court for judicial review applications and sneer at imaginary activist judges.

Like a gear stick that has come loose, there seems no connection between the political phrases and the policy substance.

But the phrases are not meaningless – they still have purchase (else they would not be used).

The phrases are enough to get people to nod-along and to clap and cheer.

It is just that they are nodding-along and clapping and cheering when the actual policies then being adopted and implemented have the opposite effect.

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Can anything be done?

An optimist will aver that mankind can only bear so much unreality – and that people will realise they have been taken in by follies and lies.

That, for example, Americans will realise that politicians who seek support to ‘make American great again’ have made America anything but.

Or that those who said they would ‘get Brexit done’ have instead placed the United Kingdom in a structure where Brexit will be a negotiation without end.

Or there will be a realisation that a government is seeking greater legal protections for statues than for actual human beings.

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A pessimist will see the opposite – that the breakdown of traditional media and political structures (with traditional political parties and newspapers seeming quaint survivors from another age) – means that it will be harder to align words with meanings.

Meaning the dismal prospect of liberals and progressives having to also adopt such insincere approaches so as to counter and defeat the illiberals and authoritarians.

Whatever the solution, it needs to come rather quickly – at least in the United Kingdom – as the current illiberal and authoritarian government is in possession of a large parliamentary majority and is showing itself willing and able to push through illiberal and authoritarian laws and policies.

While pretending to itself and others that it has ‘libertarian instincts’.

And so it may not just be the gear stick which has come loose but also the brakes as well.

Brace, brace.

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