What codification of Roe v Wade means and why President Biden is right to support it

23rd January 2021

Yesterday the twitter account of the new president of the United States tweeted about abortion rights:

Around the same time the following statement was published by the White House:

“Today marks the 48th anniversary of the U.S. Supreme Court’s landmark ruling in Roe v. Wade.  

“In the past four years, reproductive health, including the right to choose, has been under relentless and extreme attack.  We are deeply committed to making sure everyone has access to care – including reproductive health care – regardless of income, race, zip code, health insurance status, or immigration status. 

“The Biden-Harris Administration is committed to codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe.  We are also committed to ensuring that we work to eliminate maternal and infant health disparities, increase access to contraception, and support families economically so that all parents can raise their families with dignity.  This commitment extends to our critical work on health outcomes around the world. 

“As the Biden-Harris Administration begins in this critical moment, now is the time to rededicate ourselves to ensuring that all individuals have access to the health care they need.”

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But what would this “codification” actually mean?

And why should it be welcomed?

The starting point is the 1973 decision of the United States supreme court in Roe v Wade.

That decision held, in effect, that access to an abortion is a fundamental right under the constitution of the United States.

And as a right within the constitution then it is not open to any individual state to prohibit access to an abortion absolutely.

The decision did not preclude regulation of such access by individual states but they could not formally – or practically – ban it altogether.

The ultimate right – subject to regulation – of access to an abortion was that of the woman, and this right could not be removed by any state legislature.

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From a liberal perspective, it does not ultimately matter what the legal basis is for the fundamental right of access to an abortion.

The basis in the United States could be a supreme court judgment, or a provision in the constitution, or a federal law, or whatever.

The important thing is that there is a right and that it is effective and can be enforced.

That said, there is considerable merit in placing the right on a firmer basis than just a supreme court decision.

What a supreme court giveth, a supreme court can taketh away.

And although conservative judges in particular believe (supposedly) in the principle of stare decisis (that is, precedent) they often find ways to distinguish and set aside precedents when those precedents are liberal.

The conservative packing by former president Donald Trump of the supreme court and the federal judicial benches generally mean that it is increasingly likely that Roe v Wade could either substantially limited or even reversed.

And this is partly because the privacy right that the supreme court articulated in 1973 as the basis of the right of access to an abortion is not actually an express provision in the constitution.

It is a right which the 1973 supreme court found to be necessarily implicit in the constitution.

But the general problem with any right judicially implied into a legal instrument by one court is that it is conceivable that another court will not make the same inference.

And although the 1973 judgment was a welcome advancement, few would say that the reasoning of the justices has been generally accepted.

So the judgment of Roe v Wade stands there precariously, awaiting an assault by conservative lawyers and judges.

And if it falls, then the constitutional right of access to an abortion falls with it.

What a supreme court giveth, a supreme court can taketh away.

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So what could be done?

Ideally, one would want a constitutional amendment.

If the right of access to an abortion was explicitly spelled-out in, say, an amendment to the constitution then the position would be placed beyond doubt.

And then no supreme court, however constituted and motivated, could do a thing about it (without breaching the constitution itself).

But this would be unlikely in practice, if not impossible.

There would not be sufficient support in congress and certainly not from a sufficient number of states for the constitution to be amended under Article 5 of the constitution.

The next best thing, however, is codification.

This means congress placing the right on a statutory basis at the federal level.

And this would be possible because, as with any express or implied right of the constitution, there is a basis for congress to legislate.

It is not a perfect solution.

It would still be possible for a supreme court to strike down such an act of congress as unconstitutional as it is possible for any other federal legislation.

But it would fortify the right: for instead of a conservative supreme court only needing to reverse the 1973 judgment it would also require striking down federal legislation that gave statutory effect to that right.

And although a right as fundamental as access to an abortion should never depend on mere majoritarianism – for even if abortion was prohibited by every state legislature there should still be a right of access of a woman to an abortion, as that is the nature of fundamental rights – it can be argued that endorsement by democratically elected politicians would also make it more difficult for judges to overturn the relevant legislation.

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Of course, it is at this stage only a proposal – former president Barack Obama also put forward codification only to not go through with it.

But given the recent packing of the federal benches with conservative judges and what seems to be (and without any serious doubt is) a long-term co-ordinated judicial strategy by conservatives of reversing Roe v Wade, it is prudent for the right of access to an abortion to be codified.

Rousing liberal judgments are wonderful gladdening things – but they are shaky as the sole basis for any fundamental right.

No fundamental right should depend only on a majority of judges at a certain moment in time.

Roe v Wade is a great judgment – at least in its effect, if not its reasoning – but the right it articulates is becoming more vulnerable than it needs to be, and so that right should now be codified.

For what a supreme court giveth, a supreme court can taketh away.

*****

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The United States had its cathartic post-2016, post-Trump ceremonial moment – but the United Kingdom cannot have a similar post-2016, post-Brexit moment

22nd January 2021

Two days ago the inauguration of a new president in the United States gave ceremonial form to the constitutional substance that the presidential term of Donald Trump was over.

What had been done in 2016 had, to a significant extent, been undone.

Of course, there will be things that could not been undone, such as the scale of the avoidable loss of life by reason of a flawed coronavirus policy.

The extensive conservative appointments to the federal judicial benches will take a political generation to counterbalance, if they are counterbalanced at all.

And Trumpism – populist authoritarian nationalism feeding off post-truth hyper-partisanship – certainly has not gone away, even if Trump is no longer in the White House.

But taking account of these exceptions, there was still a moment of closure: that a particular presidency was both formally and substantially at an end.

*

In the United Kingdom there will not be such a moment where one can say the consequences of the 2016 referendum vote will come to a similarly cathartic end.

In 2016, American voters (via the electoral college) elected Trump for a term of four years, while those in the United Kingdom voted for Brexit with no similar fixed term.

One decision was set to be revisited in four years, the other was not.

*

Even the (various) departure dates have not provided any sense of release.

The United Kingdom was to leave on on 29th March 2019, then 12th April 2019 or 22nd May 2019, then 31st October 2019, and then 31st January 2020 (on which date the United Kingdom technically left the European Union), and then there was a transition period which would end on 31st December 2020 (on which date the transition period did end) or 31st December 2021.

A couple of this spate of departure dates did turn out to be legally significant, but none of them appear to have had any substantial effect on the politics of Brexit.

Those in favour of Brexit appear to still be trying to convince themselves and others of its merits, and those opposed to Brexit are still seeking to demonstrate its folly.

(This is despite the ‘mandate’ of the 2016 referendum having now been discharged,  in that the United Kingdom has now departed the European Union.)

None of the various departure dates marked when those in favour of or against Brexit could say the matter is decisively over, in the same way the Trump presidency came to its obvious end.

Partly, of course, this is because of the ongoing pandemic: every political thing is now muted.

But even taking the pandemic into account, the politics unleashed by the 2016 referendum have certainly not come to anything like an end.

*

But Brexit will never be over in other senses.

As I averred in this Financial Times video, the trade and cooperation agreement between the European Union is expressly structured as a ‘broad….framework’ that can be supplemented by further agreements on discrete issues and is subject to five-yearly reviews on more fundamental issues.

 

Brexit is now a negotiation without end.

Instead of ever-closer union we now have ever-closer (or less close) cooperation.

There has not been a once-and-for-all settlement of the matter of the relationship between the United Kingdom and the European Union.

We have simple swapped one dynamic relationship for another.

*

Some of those opposed to Brexit are now waiting for a grand realisation – where a substantial number of people may wake up to what has happened since 2016 and come to their senses.

The notion is that such ‘loss aversion’ will have considerable political force and push the United Kingdom back towards the European Union – perhaps even to swiftly rejoining as a member.

This may happen – the lesson of 2016 is that many unlikely things can actually happen in politics.

But it is unlikely – the government and its political and media supporters are adept at evasions and misdirections, and voters are capable of blaming many things before they will blame their own votes.

Yet taking this as a possibility, it would not be enough.

This is because there are two constituencies that those who seek for the United Kingdom to (re)join the European Union need to win over.

The first is the United Kingdom electorate which needs to be won over to settled and sustained support for full membership of the European Union (without the benefits of the United Kingdom’s previous opt-outs).

The second, and perhaps far harder, will be winning over the European Union.

A belief that once the United Kingdom sorts itself out, that (re)joining the European Union would be straightforward is just a variant form of British (or English) exceptionalism.

Even the grandest, most dramatic domestic realisation of the folly of Brexit will not mean the United Kingdom joins the European Union again, unless the European Union also sees it as in its interests for the United Kingdom to (re)join.

Remorse, however sincere and lasting, will not be enough.

There is no reason or evidence to believe that the European Union would consider membership of the European Union for at least a political generation.

(And the United Kingdom itself may not even exist in its current form by then.)

So as Brexit is a negotiation without end, it will also be two political exchanges (the domestic debate, and the two-way relationship between the United Kingdom and the European Union) without any early or obvious end.

*

There will be no cathartic Biden-like ceremony to bring Brexit to a close.

This is because of the nature of the 2016 referendum (which, unlike the election of Trump, was not a decision for a fixed period); and because of the dynamic structure of the new relationship as set out in the trade and cooperation agreement; and because of the unsettled politics both internally in the United Kingdom and of its relationship with the European Union.

And so, to a significant (though not a total) extent, the United States was able to bring what it decided in 2016 to a formal and substantial end, the United Kingdom cannot similarly do so.

For the United Kingdom, 2016 is here to stay.

*****

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The inauguration of a new president: mere ceremonial form and hard constitutional substance

21st January 2021

One of the few benefits of lockdown is that you are no longer expected to go to weddings and other ‘happy’ ceremonies.

Instead of days of tiresome travel and hours of boredom, one can watch the ceremony and speeches on a laptop for an hour or so and then go and do something more useful instead.

(For more on form vs substance regarding marriage ceremonies, see my 2011 New Statesman post.)

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Much of this impatient disdain for mere ceremonial form can and should be applied to constitutional matters.

Certain symbolic events symbolise nothing other than symbolism is important only for the sake of symbolism.

Interesting perhaps for the fogeys and other enthusiasts, but often a bore for the rest of us.

And presidential inaugurations in the United States are usually fairly meaningless occasions, other than that they happen to be around the same time as when by automatic operation of law one presidential term ends and another one begins.

But the inauguration ceremony yesterday was different.

It was riveting.

*

Just as lockdown has had a few benefits notwithstanding the immense misery, so has the presidency of Donald Trump.

And one of those few benefits is that far more people now realise how the constitutional law of the United States works (and does not work) in practice.

Certain things before Trump were taken for granted to the extent that anyone realised those things existed at all.

Take, for example, what happens between a November presidential election and the January inauguration of a new presidential term.

The rights to recounts and re-run ballots; the certification of votes by each individual state; the appointment of electors for the electoral college and their obligations; and the congressional counting of the vote and certification of the winner.

Previously each of these steps – even with the contested 2000 result and Bush v Gore – was a mere formality.

One could have an informed interest in American politics and not know much or indeed anything about these obscure procedural steps.

Now many people know exactly the process that exists between the national vote and the start of a new presidential term.

And widespread knowledge about constitutional arrangements is a good thing.

It may be a bad thing for constitutional law to be exciting –  politics should take place within an agreed framework rather than constantly being about undermining that framework – but understanding the rules of any game is important for those taking part and those watching.

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And we watched the ceremony yesterday with anxious scrutiny.

Few people in the future will realise just how nervous many of us were in the last hours and indeed minutes of the Trump presidency.

What would he do? 

What could happen?

Is it over yet?

(And indeed Trump issued another pardon with only minutes of his term to go.)

Even watching the chief justice swear in the new president was not enough: it still was not noon Eastern Standard Time.

The final one or two minutes seemed to last an eternity, even though the new president was well in to his acceptance speech.

And then: it was twelve noon EST.

Not since Charles Perrault’s Cinderella has there been a strike of twelve that produced such a wonderful general transformation.

It was over.

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The greatest (if flawed) writer about the constitution of the United Kingdom – at least from an English perspective – Walter Bagehot made a distinction between the efficient and the dignified elements of a constitution.

Some who only know of this famous distinction misrepresent it as meaning that the dignified elements are somehow useless elements.

But this is not what Bagehot meant – what he actually said was:

“There are indeed practical men [and women] who reject the dignified parts of Government. They say, we want only to attain results, to do business: a constitution is a collection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless.

“And other reasoners, who distrust this bare philosophy, have propounded subtle arguments to prove that these dignified parts of old Governments are cardinal components of the essential apparatus, great pivots of substantial utility; and so they manufactured fallacies which the plainer school have well exposed.

“But both schools are in error. The dignified parts of Government are those which bring it force—which attract its motive power. The efficient parts only employ that power.”

He continued:

“[The dignified elements] may not do anything definite that a simpler polity would not do better; but they are the preliminaries, the needful prerequisites of all work. They raise the army, though they do not win the battle.”

In other words, it is not just important that institutions work well but they are legitimate and seen to be legitimate.

And thereby the purpose of any constitutional ceremony is not just an exercise in form but part of what confers legitimacy on those who exercise the power of the state.

Of course, we could have got by without any ceremony yesterday and just watched the clock run down in silent dread.

And of course, the ceremony was not ‘efficient’ – even the chief justice got the law wrong in that Biden was not yet the new president, at least for thirteen minutes.

But as Bagehot averred, to say part of a constitution is dignified is not to say that it is useless, but that it serves another purpose.

To be sworn in at the seat of the legislature by the head of the judiciary is a powerful indication of constitutional legitimacy, especially as it was at the very place where an insurrection happened just days ago.

This will not be enough for some Trump supporters, but it could not have been done better in the circumstances.

In more than one sense, therefore, the inauguration ceremony of Joseph Biden sought to bring dignity back to the government of the Unites States – not only in his personal manner but also in Bagehot’s sense of demonstrating to all those watching that this new presidency is constitutionally legitimate.

*****

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Beggaring the pardons – why the presidential power to pardon needs to be regulated

20th January 2021

Yesterday, on his last full day in office, President Donald Trump is reported as having issued seventy pardons, as well as having commuted seventy-three other sentences.

This in and of itself is not unusual: on his last day of office President Bill Clinton issued about twice as many pardons – including one for his brother.

Issuing a raft of pardons on one’s final day as president is now as established a tradition as the president pardoning a turkey on Thanksgiving.

Of the many things one should be annoyed or disappointed about Trump and his presidency, the mere fact of last-day questionable pardons is certainly not something unique to him.

Yet, Trump’s (actual and threatened) uses and abuses of pardons, and of his power to commute, do warrant further consideration, as they go to the heart of the relationship between the course of justice and the powers of the executive.

In essence: at what point do pardons cease to complement the justice system – showing mercy to those duly convicted – and become something else instead that undermines the justice system itself?

*

To beg for a pardon is to plead for forgiveness.

It is just that the phrase ‘I beg your pardon’ is so familiar – it now means little more than ‘can you please repeat?’ or ‘what the Dickens have you just said or done?’ – that we overlook what the word ‘pardon’ actually means – or should mean.

And to forgive an act or omission requires certainty as to what that act or omission was – else how do you know what is being forgiven?

Accordingly a pardon should be as exact in its particulars as an indictment – almost a mirror image.

A person has been convicted of and sentenced for [x] – and so it is [x] that is being forgiven.

The conviction would – or should – still stand as a public and formal finding of criminal culpability – but the convicted person would be relieved from the burden of the sentence.

It would also be implicit that an acceptance of a pardon was an admission of criminal guilt – else how can one be forgiven for a wrong, if there was no wrong in the first place?

All this is what a pardon should be about, from first principle of it being an exercise of forgiveness.

(A commutation of a sentence raises a different issue as an exercise of mercy, and does not require any implicit admission of guilt.)

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But this is not what a presidential pardon is now understood to mean.

A presidential pardon is now, following President Gerald Ford’s pardon of President Richard Nixon for example, something that does not need to be exact in its particulars nor something that carries any implicit admission of guilt.

There does not even need to be a prosecution in place, or even envisaged.

A presidential pardon is now understood to be a ‘get out of jail, free’ card.

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The use of the ‘understood to be’ qualification above touches on another aspect of presidential pardons – they are rarely litigated and so have not (yet) been regulated by the courts or effectively by congress.

There is significant legal uncertainty as to the scope of pardons that depart from the classic model of exactness in respect of the punishment being forgiven.

The pardon for Nixon, for example, may be a political precedent but it is not a judicial precedent.

A pardon the scope of which Ford granted to Nixon may not survive judicial scrutiny.

(The way a pardon presumably would be litigated is when a prosecution appealed a defendant using a (purported) pardon as a bar on proceedings.)

This may explain why Trump did not announce a self-pardon nor Nixon-like pardons for his family and associates. 

(There may also be other practical considerations, such being able to invoke the fifth amendment against self-incrimination, which would be difficult if you were protected from such incrimination.)

*

But the lack of regulation and case law raises another non-trivial possibility.

There is a fascinating piece at CNN about ‘secret pardons’.

And it is correct that there is nothing on the face of the constitution that requires a pardon to be publicly announced when it is granted.

Trump has also not complied with other conventions when granting pardons, and so there is not inherent reason why he would not flout the convention that a pardon be publicly announced.

If this happened, the first we would ever know of such a pardon would be if and when it was raised by a defendant as a bar to proceedings.

By which time this presidential term of Trump will be long gone.

And what could be done? 

Even impeaching Trump again (and again) would be pointless.

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As was once averred, power tends to corrupt and absolute power corrupts absolutely.

And so it is not surprising that it is in the two areas where an executive has, in effect, absolute power – the bestowal of honours and the granting of pardons – that there is corruption.

Those with political power will always tend to do what they can get away with, unless they are checked and balanced.

(The principle that for every power there is an equal and opposite check and balance is – or should be – the essence of constitutionalism.)

On the face of the constitution of the United States it would appear that the power to grant pardons is absolute.

Yet such an absolute power would make a nonsense of the careful separation of powers set out in the constitution generally, and of the express obligation of the president that he or she ‘shall take Care that the Laws be faithfully executed’ (Article II, section 3) in particular.

All because there has not yet been regulation of this power does not mean that a supreme court or congress may not one day set out the scope of the presidential power of pardon that accords with the constitution as a whole.

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If the word ‘pardon’ has drifted in meaning, so has the word ‘beg’.

It does not only mean ‘to plead’ – but also in the form ‘to beggar’ it can mean broadly ‘to reduce in value’: to ‘beggar belief’ is to say a thing is not worthy of belief, and to ‘beggar thy neighbour’ is to seek to aggrandise at the expense of a competitor.

In this way, Trump’s (actual and threatened) pardons – and other presidential pardons – can be seen as beggaring pardons.

But begging your pardon for that pun, there is now a compelling case for placing the power of presidential pardons on a basis so that they remain exercises of mercy to complement the course of justice, rather than undermining justice itself.

Such a congressional act or supreme court decision would be one good way for the presidency of Donald Trump to be remembered.

*****

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With a Brexit deal in place, Cummings gone, Trump going, constitutional law may become less exciting – but constitutional law will be no less important when it is dull

19th January 2021

To warn against ‘complacency’ is a loaded statement, for no sensible person ever says ‘let us be more complacent’.

Similarly, no sensible person will say ‘I think we should be less vigilant’.

(Both statements are illustrations of the late Simon Hoggart’s ‘law of the ridiculous reverse’ (see here and here).)

But even though such warnings can be empty statements, citizens will still tend to drop their political guards.

In the United States, Trump leaves office tomorrow and his presidential term ends by automatic operation of law, and he faces a senate trial on his impeachment.

Trump has also lost access to his preferred social media platforms.

Here in the United Kingdom, the prime minister no longer has the constant push towards extraordinary constitutional and policy behaviour from former aide Dominic Cummings and other former advisors.

And the United Kingdom is now within a sustainable trade and cooperation agreement with the European Union, meaning the legal and policy uncertainty of a ‘no deal’ Brexit was mitigated.

These happenings are such that the temptation for liberals and progressives is to dance like victorious Ewoks and to rejoice as if the thaw has come to Narnia.

And, to certain extent, some bad things have now left the political space.

*

But, two things.

First, as the tidal wave of what happened in 2016 in both the United States and United Kingdom ebbs, we are left with an amount of constitutional wreckage.

In the United States, for example, there has been a substantial reconfiguration of the judiciary in a conservative and illiberal direction, the effects of which will last at least a generation.

For the United Kingdom, it has now found itself outside the European Union – with Great Britain if not Northern Ireland outside the customs union and the single market – a mere five years or so after the general election in 2015 where every mainstream party was committed to membership.

And as this blog has previously averred (here and here), it will take at least five to ten years before any application of the United Kingdom (or what remains of it) would be considered by the European Union, and it is likely any such application will not be considered for, again, a generation.

Both of these pieces of constitutional wreckage are now part of the order of things and liberals and progressives will have to get used to their existence.

*

And second, at least in the United Kingdom, there are still four ongoing attacks on constitutionalism – that is on the notion that there are things that those with state power should not do, as those things are contrary to constitutional principles, norms and values.

The first of these attacks is by the executive on the legislature – the ever increasing use of discretionary power and secondary legislation that is neither scrutinised nor supervised by parliament.

The second is the attack by the executive and its media supporters on the judiciary holding the government to account – the constant threats (in England and Wales, if not Scotland and Northern Ireland) to those who exercise the supervisory jurisdiction of the high court.

The third – related to the second – is the attack by the executive on the rights and liberties of citizens – either by the attempts to limit substantive rights under human rights instruments or, by procedural changes or the removal of funding, to render such rights as practically unenforceable.

And the fourth is the attack on the checks and balances generally in the United Kingdom’s constitutional arrangements, from the independence of civil servants, diplomats and government lawyers, to autonomous institutions such as the BBC and universities.

An aspect of this fourth attack is the deliberate placing of certain agents of the state beyond or above the law, such as in respect of war crimes or the actions of those engaged in intelligence.

*

Few of these ongoing attacks will result in ‘big ticket’ legal cases, where the government provokes and then (one hopes) loses some showdown in court.

These attacks will be quiet but still relentless, and their overall effect will be as significant as any ‘big bang’ constitutional reform.

And it will not be enough to keep pointing out these constitutional trespasses, as until citizens care about such abuses of power, the mere exposure of those abuses is of limited political consequence.

The government will just shrug and commit constitutional trespasses anyway.

*

With the likes of Trump and Cummings and a ‘no deal Brexit’ out of the everyday political space, constitutional law is certainly going to be less exciting.

And this is to be welcomed, as constitutional law should not be exciting.

Constitutional law should be dull.

It is not a good thing for the parameters of any political system to be constantly tested as part of partisan – or hyper-partisan – political debate.

But even if constitutional law becomes more dull, it will not be any less important.

It is when constitutional law is dull that the government is more likely to get away with things.

And it may not make much political difference for public-spirited donkeys such as this blog to keep tracking constitutional and other law and policy trespasses, but it is important that it is done anyway.

Being vigilant and avoiding complacency when things become dull is more difficult than when there is loud and bombastic excitement.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

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Suppose the government wanted a culture war and nobody came? The law and policy of “protecting” statues and other monuments

18th January 2021

Another day, another cabinet minister in the United Kingdom seeking to provoke a culture war.

This time it is the secretary of state for housing, communities and local government who – notwithstanding his explicit cabinet-level responsibility for ‘communities’ – is soliciting political support in return for promoting a populist and divisive policy.

You may wonder what a minister in charge of such a department could find in that ministerial portfolio that would ‘play well’ and ‘own the libs’, but this minister has found one.

Statues.

In respect of law and policy, the two key paragraphs of the column are:

“Following in that tradition, I am changing the law to protect historic monuments and ensure we don’t repeat the errors of previous generations. Proper process will now be required. Any decisions to remove these heritage assets will require planning permission and councils will need to do so in accordance with their constitution, after consultation with the local community.

“Where that does not happen, I will not hesitate to use my powers as Secretary of State in relation to applications and appeals involving historic monuments where such action is necessary to reflect the Government’s planning policies. Our view will be set out in law, that such monuments are almost always best explained and contextualised, not taken and hidden away. More details will be set out in Parliament tomorrow.”

*

One would think that in the midst of a pandemic and the effects of Brexit, there would be more important things for any secretary of state to do.

And given the ongoing strains on local government and the problems with housing, there must be more important things for this cabinet minister to be doing with scarce departmental resources and limited parliamentary time.

But no.

Statues.

*

But even if for some political reason for this to be a policy priority, the proposal makes no sense.

Statues are already protected by law.

First, they are protected in respect of theft and damage by the general law of the land, as can be shown with the prosecutions of those who put the statue of a slave trader into Bristol harbour.

Nothing in the announced proposals goes any further than the direct protections afforded by the criminal law.

Yet the article by the cabinet minister was uncritically promoted on the BBC and on social media as offering protection to statues from ‘baying mobs’:

One wonders if those at the BBC and elsewhere had actually read the secretary of state’s article, for there is nothing in the piece that goes to anything that would counter a mob, baying or otherwise.

The proposals are merely about adjusting the planning regime – presumably to make the lawful removal of such statues subject to even more conditions.

*

Which brings us to the second reason for the pointlessness of this proposal.

Most statues of any note are already protected as listed buildings and so are subject to additional conditions in respect of their removal or modification.

Take for example, that statue of the Bristol slave trader.

As Professor Antonia Layard sets out in this fascinating and interesting article:

“In 1977, the statue was listed as a grade II building (No. 1202137). This is the lowest category of listing, identifying it as a building “of special interest, justifying every effort to preserve them” […]

“Once listed, s7 of the Planning (Listed Buildings and Conservation Areas) Act 1990 imposes restrictions on works, requiring authorisation to alter, extend or demolish the listed building if this would affect its character as a building of special architectural or historic interest. Alteration, extension or demolition (s8) can all happen with consent but there is no express provision (perhaps inevitably) for moving a sculpture. When deciding whether to grant consent for a change, the Secretary State (or planning inspectors acting on his behalf), the Secretary of State or anyone acting on his behalf must have special regard to the desirability of preserving listed buildings, their setting or any special architectural or historical features they possess before making a consent order (s26F P(LBCA)A 1990).”

The new proposals of the secretary of the state appear to go no further than powers that they already have in respect of listed buildings, including changing their setting.

The secretary of state will know this, or should know this – and their department will certainly know this, as it is the department responsible for considering applications for such consents.

There is an argument, as Professor Layard’s article sets out persuasively, that statues should not be under the same conservation regime as other structures, as there may be different considerations for removal of a statue of, say, a notorious figure than for a house.

But that is certainly not the argument being put forward by the secretary of state.

*

If promoting such a proposal may be seen as a waste of time by a secretary of state, it may equally seem a waste of time for a blog such as this to spend time setting out the legal and policy reasons why such a proposal is daft and unnecessary.

Don’t feed the trolls, and so on, even when the troll is a secretary of state hoodwinking the BBC and others.

But it is still important that such proposals are patiently examined on their merits and shown to be wanting – as a reminder and a register to the rest of us that these things are not normal nor appropriate.

What is a waste of time is to just meet provocation with outrage, to join in as a combatant in a culture war.

And eventually there may be a realisation that there is no longer political merit is promoting such divisive populist policies – and indeed, in early 2021, the approach here of the secretary of state seems rather old hat and 2016-ish,

Suppose the government wanted a culture war and nobody came.

*****

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Does the possibility of a Senate conviction after 20th January 2021 mean that President Donald Trump will modify his behaviour for the next few days?

17th January 2021

There is a story from ancient times about a ruler who had installed above their throne a sword that, but for being suspended a single hair, would come down and kill them.

This suspended sword would be a constant reminder to that ruler – or whoever else sat on the throne – of the anxiety of ruling, and of the reality of danger.

The intention was that such a threat would ensure that any person on the throne would always be in exactly the right frame of mind for the challenges of ruling.

This sword of Damocles is now the subject of a familiar phrase – a  phrase so familiar that many will not know the backstory.

*

The contemporary relevance of this fable is perhaps obvious.

President Donald Trump has been impeached, but there has not yet been a senate trial for his conviction.

Such a trial is almost certainly not to take place before 20th January 2021 – three days’ time – when this presidential term ends by automatic operation of law.

This delay is unfortunate – as if what Trump did and did not do on 6th January 2021 does not warrant impeachment and removal from office then it is difficult to conceive of what would.

But the delay is not without its advantages.

The first advantage is that it avoids the possibility of an equally swift acquittal – for it cannot  be assumed there would be sufficient support from Republican senators for conviction.

And an acquitted Trump would no doubt be emboldened and perhaps even more dangerous in these last few days of office.

And the second advantage is that the possibility of conviction now hangs over him like a sword suspended by a single hair.

A conviction – or even just a trial trial – after 20th January 2021 could still be consequential for Trump.

This is because there could also be a separate vote to disqualify him from holding office again  – thereby, at a stroke, formally removing the main claim he may have for future political significance.

There could be other votes to remove various benefits that he would have as a former president.

And, for a politician highly conscious of his place in history, he will be the first president ever convicted after impeachment.

*

The better behaved Trump is before the 20th January 2021, this argument goes, the less likely such consequences will come to pass.

Alternatively, any recklessness or abuse of powers now will make the sword of a conviction and other sanctions dangle even more precariously.

Of course, this approach assumes Trump to be a rational politician (and this blog has averred previously that Trump’s behaviour can be seen as rational, if taken on its own terms).

But even if there is no rationality, and instead a simple regard of a political bully for the dynamics of political brute force and the power of leverage, the threat of a conviction may still have an effect.

*

Perhaps this is wishful thinking – and that there is nothing which can be done in the last three remaining days to prevent whatever abuses and misuses of power that Trump is still capable of.

But if those abuses and misuses of power do come to pass then at least there is the constitutional consolation prize of an increased likelihood of a conviction, even if it too late to make any practical difference to this presidency. 

The sword of Damocles was both literally and metaphorically a suspended threat, intended to concentrate a ruler’s mind.

And over the next three days we shall see whether the possible conviction hanging over Trump will have a similar political effect.

 

 

Why prime ministers and ministers should read the legal texts for which they are responsible – and not leave it to summaries and advisors

16th January 2021

There are news reports that the prime minister has not read the trade and cooperation agreement with the European Union – and nor had the fisheries minister before it was agreed.

And this follows the former Brexit Secretary who once admitted he had not read the thirty-five page Good Friday Agreement – even though that document was of fundamental importance to the shape and outcome of Brexit.

https://twitter.com/EmmandJDeSouza/status/1306319236583903234

*

One reaction to these admissions is to say that it is not actually necessary for ministers to read such legal texts – that ministers are usually not specialist lawyers, that such engagement could lead to misunderstandings, and that it would not be an efficient or sensible use of their limited time.

And that it is perfectly reasonable, and indeed preferable, that ministers rely on the advisers to summarise and explain these legal texts instead.

For such reasons, the argument goes, it is not fair to criticise ministers for not reading legal texts for which they are responsible or, in the case of the Good Friday Agreement, fundamental to their ministerial roles.

*

Many of those who hold this view are themselves advisers or others who have briefed and summarised such legal texts for ministers and other lay people.

This blogpost avers that this view is not correct and that, for the following three reasons, any minister should be on top of the legal text for which they are responsible or is relevant to their roles, and that ministers should not rely on advisers and their summaries.

*

As a preliminary point, however, there is something that this blogpost is not contending.

A minister should not just be left alone with a legal text and be expected to engage with it as an experienced and specialist lawyer.

Even ministers who happen to be lawyers may not be experienced or specialised in the relevant field.

This post is not suggesting that ministers become their own lawyers.

This post instead is putting forward the view about how ministers should approach legal texts as an active (rather than as a passive) client of their legal advisers.

How – in accordance with the old adage – advisers should advise and how ministers decide.

*

The first reason is that any intelligent and diligent lay person (that is, a person who is not a specialised lawyer in a relevant field) can engage with a legal text.

No legal text is so obscure – or sacred – that it requires a solemn priesthood of lawyers to interpret its import to the uncouth.

Although parts of some legal documents can look as impenetrable as a computer screen suddenly full of source code, all legal documents will have basic terms, for example: party [x] shall do [y] and if [y] does not happen, then [z] happens instead.

Legal instruments create rights and obligations, and they provide for consequences of those rights being exercised or of those obligations not being fulfilled, and they provide for allocations of risk of certain things happening or not happening.

This is not mysterious stuff – but the very stuff of relationships and powers and conflicts – indeed, it is the basic stuff of politics itself.

And for a minister, a legal text for which they are responsible will set out in hard form these relationships and powers, and how any conflicts are to be resolved.

A minister should therefore engage with such a text and ask their lawyers and other advisers: What does this provision mean? What is the consequence if [a] happens? What is the consequence if [b] does not happen and so on.

In response, any (genuine) expert will have no difficulty in explaining the answer in plain language – or in admitting that something may be missing.

In my experience, the best lay clients are not the ones who pretend to be lawyers – but the ones who will test their lawyers to explain any instrument or other legal text.

Often the lay client, who will usually be approaching the text in a far more practical, street-wise way than any adviser, will spot many possible imprecisions and omissions.

After all, the lay-client is the one who will have to deal with the consequences of how that instrument works in practice.

And this exercise in active engagement can only be done by direct reference to the legal text – not some summary at one or two stages removed.

Like a decent literature student who knows not to rely on York Notes, and a decent law student who knows not to rely on Nutshells, any intelligent and diligent lay client knows there is no substitute to knowing the primary materials.

And again, this is not the lay person pretending to be a lawyer, but them fulfilling their proper role as a client.

*

The second reason is that is that summaries are sometimes not reliable texts, notwithstanding the best intentions and professionalism of the adviser who prepares that summary.

This is the nature of summaries: you are relying on another person to identify and set out all the key issues – and such summarisers are not infallible.

But regardless of fallibility, a summary of any legal instrument does not necessarily deal with all the questions a lay client can have when reviewing the terms of that instrument.

And this is because a legal instrument deals (or may have to deal) with dynamic situations where different parts of the instrument can be engaged at once and interact- and any summary is linear.

For example: a thing could happen which is simultaneously a breach of obligation (a), triggers remedy (b), which is subject to a limitation (c), giving rise to process (d), entitling the party not in breach to options (e), (f) and (g).

Different fairy lights can be flashing all at the same time.

No summary can ever equate to having a practical grasp of how a legal instrument works in foreseeable situations.

And this grasp is perfectly possible for an intelligent and diligent lay client – in dialogue with advisers.

This is not to say summaries are redundant – but that they are inherently limited as a means of conveying a robust understanding of any legal instrument.

(And this assumes the summariser being a professional person with relevant experience the best intentions – advisers with their own biases and interests or lack of experience can make the summaries even less of an adequate substitute.)

*

The third reason is political.

The doctrine of ministerial responsibility means that it is the minister – and not the civil servant, government lawyer or other adviser – who is responsible to parliament and to the public for decisions.

This means that parliament and the public look to the minister to be the one who makes decisions.

Many ministerial decisions are necessarily made on the basis of summaries – one or two pages of a recommendation in those famous red boxes.

But when the minister is to bind the United Kingdom in an international agreement, with profound consequences for every citizen and business, that duty cannot be offloaded and outsourced to advisers.

A refusal or unwillingness to engage with the primary materials also can lead a minister to wishful-thinking or even denialism – that such-and-such will not really lead to a trade barrier in the Irish Sea and so on.

Such evasions are far less possible when you see things in their black-and-white typed form, and you have had explained to you what the meaning and consequences are of that black-and-white typed form.

There is also, of course, the natural tendency of people with power to rely on others only then to blame them when things go wrong.

Decisions in respect of the United Kingdom’s obligations are not for advisers and officials to make – ministers have to form their own view, for it is that view for which ministers are responsible.

*

A minister – even a prime minister – is just as capable as any intelligent and diligent lay client as engaging directly with a legal instrument, and in forming their own understanding of that instrument.

Summaries and reliance on advisors are not substitutes for knowing your way round the primary materials.

And given the doctrine of ministerial responsibility, and the immense importance of many legal international agreements, ministers have a special responsibility to properly understand what they are signing us up to.

Advisers advise, and ministers decide – but some ministerial decisions require far more than reliance on advisers.

*****

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The reluctance of the Home Office to deny publicly that it is reconsidering the restoration of the death penalty – an example of government-media relations

15th January 2021

On 25th December 2020, of all days, the following was tweeted:

There are three immediate things to observe about this tweet.

First, the content.

This is a sensational claim but it is one which, for some people, would seem plausible.

The home secretary is a past supporter of the death penalty and the home secretary is also known as being willing to use home office policy on ‘law and order’ in a politicised way.

And elsewhere the United States has resumed federal executions in the run-up to a presidential election, and the similarly populist government of Turkey has signalled that it would want to reintroduce capital punishment.

Second, the provenance.

The account is anonymous but it does have a reasonably sized following, including followers from many areas of law and the media.

The account does not link to a site for the organisation named, and nor does a Google search indicate that the organisation has any existence beyond that twitter account.

We therefore do not know who the “us” is in the tweet and how much credibility their claim should have.

As such the claim cannot and should not be accepted without corroboration.

(This is not to diss the named organisation and what they campaign for, but is just a normal exercise in fact-checking.)

Third, the circulation of thee tweet.

As of today, the tweet has had an extraordinarily wide circulation.

It has had around 1,800 retweets and 1,900 quote-tweets – often from accounts that have accepted the claim in the tweet to be true or at least plausible.

This means a considerable number of people will now believe that the claim is correct or at least has some substance to it: that the home secretary has asked civil servants at the home office to scope a policy paper on the restoration of the death penalty.

(I do not have access to the tweet’s analytics, but in my experience, such a widely circulated tweet would have been seen by over one hundred thousand and possibly up to a million other twitter users – for that is the multiplying effect of thousands of retweets and quote-tweets.)

At this stage, now click on and read this magnificent post by Matthew Scott on the legal and practical difficulties of such a restoration of the death penalty, including the range of international legal instruments that prohibit such a restoration by the United Kingdom.

In essence: the United Kingdom could, in principle, restore the death penalty – it is a sovereign nation – but it would be in breach of many international agreements if it did so.

*

So either the claim is true – which would be important for us to know – or it is untrue – and, in view of the extraordinarily wide circulation of the tweet, it would be also important for the false claim to be publicly corrected.

(In saying that the claim may be untrue, this again is not to diss the account that tweeted – they may be only as good as their source, and it is possible they heard this from a‘little bird’ in good faith.)

I happen to be in the process of preparing and writing a few things at different titles (and here on this blog) that touch on populism and the use (and misuse and abuse) of law.

I had seen the tweet several times in quote tweets, and so my first step was to find out whether there was any other relevant information in the public domain.

https://twitter.com/davidallengreen/status/1349722281501724673

 

There was none.

And so it seemed that the claim should be put to the home office to ascertain whether it was true.

https://twitter.com/davidallengreen/status/1349725293611606018

My email query was:

“There is a widely circulated assertion that the Home Secretary has asked Civil Service to scope a policy paper on the restoration of the death penalty – source: https://twitter.com/BameFor/status/1342495556732649478 

Can I please have a Home Office statement on this? Normally, and view of UK’s international obligations, one would expect a straight denial, without equivocation.”

*

At this stage, I expected to just get an email containing either a bland denial that the claim was untrue or perhaps an equally bland if evasive statement about not commenting on tweets.

What happened instead was a telephone call where I was told that the claim was ‘rubbish’.

Now ‘rubbish’ is one of those press officer words – like ‘nonsense’ and ‘ridiculous’ – that is used instead of a straight denial such as ‘incorrect’.

And any telephone call from a press office is rarely about providing information (that is what emails are for), it is about the press office trying to obtain information about what is to be published and then attempting to shape what is published – and not published.

It was quickly plain that the home office did not want anything published on this at all, notwithstanding the wide circulation of the original tweet.

So I asked for a statement in writing (I never take quotes over the telephone, especially not from government press offices).

The press office’s response to this request was to question its journalistic value (although one would think that a journalist is in a better place than a press office than to make that assessment).

Given the significance and the circulation of the original claim, it seemed to me that there should be a home office statement on the record.

Indeed, you would expect that the home office would be proud and open in stating that the United Kingdom was complying with its international obligations.

*

Later yesterday afternoon a statement was emailed:

“This is a completely untrue and unsubstantiated claim from an unverified Twitter account. We are surprised that despite telling [you] this, [you] are still insisting on reporting it.”

The references ‘[you]’ in the statement is to the title they assumed would publish the statement.

The statement is worth unpacking.

The explicit reference to ‘despite telling [you] this’ placed beyond doubt that the telephone conversation was not ‘background’ – the public statement only makes sense if the previous conversation was also on the record.

The ‘completely’ and ‘unsubstantiated’ are both examples of over-emphasis – if the claim is untrue, then that is all that needs to be said.

(Like a politician who says ‘absolutely clear’ instead of ‘clear’, such additional words indicate potential evasion and misdirection.)

The denial is limited to the content and detail of the tweet – there is no general statement such as ‘the home office will not be restoring capital punishment’ and still less ‘the home office is proud to respect and comply with the international obligations of the United Kingdom’. 

Instead of such statements, there is an explicit attack on the credibility of the source and an implicit attack on the journalistic point of even putting this claim to the home office.

The ‘insisting’ is a perfect touch – and yes, one should insist that the home office should publicly state its position on restoring capital punishment when there is widely circulated claim that such restoration is being considered.

The home office wanted the statement to either be unusable or, if published, to discredit the news title publishing the story.

(I am happy to publish the public statement here, with the appropriate context set out.)

All this, instead of a simple statement that the claim was untrue and a statement that the home office is not seeking to reintroduce capital punishment and the United kingdom will comply with its international obligations.

*

There is nothing special about what happened here – this is what happens every day between government press offices and anyone in the media seeking to obtain information which the government does not want to publish.

The only difference is that I am in a position to set out the exchange on this blog.

It is a good thing that, despite their initial reluctance, the home office was able to publicly confirm that a widely circulated claim that restoration of the death penalty was “completely untrue and unsubstantiated”.

It is disappointing that the home office sought to do this with a quote intended to deter the use of the quote and thereby prevent any coverage of that denial.

And it is disappointing, but not surprising, that despite the public interest in such a widely circulated claim being openly denied, the home office insisted on going about it in this way instead.

*****

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The significance of the second impeachment of President Donald Trump is not that so many were in favour but how many were against

14th January 2021

Yesterday the president of the United States was impeached.

That is a sentence that should be neither typed nor read very often, as an impeachment is – and should be – an extraordinary thing.

The power of impeachment exists in a constitution when ordinary political processes are unable to address a particular problem.

This is only the fourth impeachment in the history of the United States, though the second time it has happened to President Donald Trump.

Any impeachment is extraordinary and rare – but what, if any, significance did yesterday’s vote of the house of representatives have?

Did the vote signify either the start or the finish of some thing?

Or was it more an illustration of something already in existence and not likely to go away soon?

Or does it not have any real significance or even illustrative value – and so was just another extraordinary political event to join the clutter of other extraordinary political events of the last four or five years?

*

An impeachment vote, of course, is only one step in the constitutional process of removing a president.

There still needs to be a trial before the senate, and the senate will then either convict or acquit.

A conviction would, of course, be significant.

It would be the first conviction of a president, the previous three impeachments each having ended with an acquittal.

And if the conviction happened before the end of this presidential term then it would also be the first removal of a siting president.

Such an outcome would have a profound significance, being the first and only example in the history of the United States of the constitution being exerted so as to expel the holder of the presidential office.

A conviction by the senate would be the first time the deeper magic of the constitution has been used to crack the stone table of the presidency.

But.

For such an outcome there are two further conditions: (1) the senate has to vote to convict and (2) that vote has to happen in the next six days.

Both of these conditions are capable of being fulfilled, but both currently seem unlikely.

Of course, a senate that recently was able to confirm the appointment of a supreme court judge at speed should be able to deal just as urgently with an impeachment trial.

The indications, however, are that the senate will not commence any trial until 19th January 2021, and that would mean any trial would go beyond the inauguration of the new president, Joseph Biden.

And, unless the senate is back in session sooner than the 19th January 2021, the significance of yesterday’s vote will not be that it lead to the removal of a sitting president.

The stone table of the presidency will remain uncracked. 

*

But what of a conviction after Trump leaves office?

That could still happen even though his term of office would be unaffected.

Such a conviction would (or could) result in Trump’s disqualification from holding and enjoying ‘any Office of honor, Trust or Profit under the United States’.

And this would have the practical consequence of preventing Trump from being elected ever again as president.

(Though similar outcome could be achieved perhaps by a formal holding of some kind – legislative or judicial – that Trump had engaged in insurrection and was thereby barred under section 3 of the fourteenth amendment.)

Such a conviction would be significant – as it would show that constitutionalism still prevailed over the abuse of presidential power.

It would signify that what Trump did (and did not) do on 6th January 2021 was constitutionally unacceptable, and that there should be serious consequences of that constitutionally unacceptable conduct.

But even this profound outcome still depends on a conviction after a senate trial.

*

For both the possibilities set out above, the significance of the impeachment vote is that it has started a process that may, or may not, have a profound outcome.

But what was the significance, if any, of the impeachment vote in and of itself?

What was certainly notable about the vote was that it demonstrated both Democratic unity and Republican division.

Most of the speeches of those on favour of impeachment, and the statements of the ten Republican representatives who voted in favour, matched the gravity of what happened on 6th January 2021.

And that the vote was bipartisan – so bipartisan that Republican support reached double-figures – showed that the president’s misconduct was so serious that it transcended normal partisanship.

This signifies that Trump’s unconstitutional behaviour no longer has the solid support of the Republican party bloc.

But.

At least as significant, if not far more so, was that so many Republican congressmen and congresswomen were steadfast in opposing impeachment, despite the events of last week.

The impression one formed watching the speeches of Republican representatives was that there was nothing – nothing at all – that Trump could do that would be so wrong that it would lead to his impeachment.

That whatever Trump did or not do would always be beyond the reach of constitutional mechanisms.

That when Trump and constitutionalism conflicted, then Trump would prevail.

A number of Republicans expressly dismissed the impeachment as merely an exercise of Democrat partisanship.   

And by doing so, they flipped from partisanship within a constitutional framework to the hyper-partisanship which disregards and denies the primacy of constitutional norms.

This means that rather than the vote signifying either the beginning of a process or the end of a presidency (or of a political career) it was more of a stark illustration of an ongoing problem.

The problem of hyper-partisanship, which is as much a threat to constitutionalism as the storming of the Capitol. 

This hyper-partisanship is, in turn, in the service of populist authoritarian nationalism – the very politics that is perhaps most in need of being constrained by constitutional norms.

And so the ultimate significance of yesterday’s vote to impeach the president may therefore be not so much that there was bipartisan support, but that there were so many in opposition and on what basis.

*****

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