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Westlake Legal Group > Constitution and democracy

Julian Brazier: Let’s resist a written constitution – and restore the Law Lords

Sir Julian Brazier is a former Defence Minister, and was MP for Canterbury from 1987-2017. He is Chairman of a security company.

When the Supreme Court delivered its judgments on the Miller and Cherry cases, the Prime Minister commented:

 “… if judges are to pronounce on political questions in this way, then there is at least an argument that there should be some form of accountability. The lessons of America are relevant.”

Let’s examine this.

Britain has, famously, an unwritten constitution. Our constitution does have some important statutory elements, including the Bill of Rights, the Representation of the Peoples Act and the Parliaments Act but, for most purposes, it is driven by convention, policed by Parliament itself and, crucially, by the wider court of public opinion.

Our flexible constitution has served us well in peace and war, as shown by the astonishing lack of constitutional crises, since the 17th Century. Our nearest neighbour, France, by contrast, is on its Fifth Republic since 1789 with interludes of monarchic rule. No British political leader has defied the courts since the Bill of Rights in 1688, unlike the USA where several presidents have rejected court rulings, including most famously Abraham Lincoln, who did so repeatedly, starting with the notorious Dred Scott verdict.

After Britain’s civil wars in the 17th Century, pitting the Crown against much of Parliament and the parliamentary coup known as the ‘Glorious Revolution’, the Bill of Rights (1688) was our founding constitutional compromise. It established that sovereignty lay with ‘The Crown in Parliament’. It also, crucially, prescribed

“That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”

This means inter alia that the courts cannot challenge the legitimacy of legislation on the basis of parliamentary process. Such process is subject only to the standing orders of the two houses of Parliament and the rulings of the Speaker and Lord Speaker.

Sovereignty of the Crown in Parliament, in practice, has meant that the government (signified by ‘The Crown’) has governed, while requiring explicit parliamentary sanction to raise taxes and make laws – and having to answer to Parliament for its actions. Crucially, Parliament has the power to dismiss a government through a no confidence vote.

A number of important factors have distorted this; joining the EU and the European Convention of Human rights made us subject to directives from abroad and allows courts to strike down legislation where it conflicts with the former and register formal protests under the latter. The other critical change is David Cameron’s Fixed Term Parliament Act which prevents a Prime Minister from calling an election, without Parliamentary action.

Nevertheless, the basic structure of rule by the Crown in Parliament remained in place. At its heart was the arrangement that, to allow a government to govern, legislation could only be initiated with the agreement of the government. All bills were government bills, except those like Private Members Bills whose arrangements depend on government.

This arrangement has recently been stood on its head by John Bercow, by allowing an ad hoc majority in the Commons to table and pass legislation – directing the government in its duties.

Constitutional authorities in this country are few – precisely because we have so few constitutional issues – and are mostly not lawyers. Probably the best known of them is Vernon Bogdanor. He comments:

‘The truth is that 650 MPs cannot make policy. Only the government can do that. The role of parliament is not to govern but to scrutinise those who do. That is especially the case with the treaty-making power… And parliament is in no position to renegotiate a treaty… MPs have rejected the government’s flagship policy without providing any alternative. It is enabled to pursue this course because of the wretched Fixed-term Parliaments Act.’

In other words, this group, answerable to nobody – until election time – are blocking an election to enable their rule to continue

In response, the government decided to use the ‘Crown prerogative’ to prorogue Parliament leading to the court case which sparked this article. Some Brexit supporters like myself felt that this was a political mistake, but courts are not supposed to rule on politics. What was at stake in that case was the simple question of whether or not the Crown prerogative to prorogue Parliament was justiciable or not.

The view of most senior lawyers, before the Supreme Court considered the case, was that it was not. Indeed a very senior panel of English judges, including the Lord Chief Justice, ruled that is was not, but their counterparts in Scotland disagreed and the Supreme Court decided that this was a matter it could rule on – and did so against the government.

Students will study this judgment for generations. Two things stand out: first the dearth of constitutional precedents. Apart from its own ruling on the putative Brexit Treaty just three years ago, the court is forced to rummage around for cases on local authority budgets, criminal injuries compensation and employment tribunal fees. It it can find only one unmistakably constitutional case, the Case of Proclamations (1611), which ruled that altering the law of the land by the use of the Crown’s prerogative powers was unlawful. To this one case, last month’s judgment returns again and again.

That should send alarm bells ringing. British law looks back (occasionally) to the reign of Richard II but, on constitutional matters, 1688 has always, hitherto, been regarded as a watershed. We simply weren’t governed in a near-universally agreed way before that, so leaning heavily on a case from earlier is extraordinary. That is especially so here as the judgment also dismisses the provision of the Bill of Rights itself quoted above (on the unprecedented grounds that prorogation happens in Parliament without its consent and so is not a parliamentary proceeding).

Equally, the judgment talks about Parliamentary sovereignty but assumes a distorted doctrine of what that actually means. The judgment never formally defines Parliament but, in paragraph 55, implies that it consists only of the House of Commons and the House of Lords. One does not have to read Dicey to know that Parliament has a crucial third element, the Crown.

The Government was hog-tied. It could not defend its actions by setting out how today’s temporary majority in Parliament had trashed the conventional interaction between government and Parliament. This was because doing so so would have invited the Court to trespass still further behind the screen on parliamentary proceedings erected by the Bill Of Rights. We have indeed witnessed a judicial coup.

So what to do? The worst option would be to move to a written constitution – such an arrangement would increase the powers of the courts because, once codified, all constitutional matters would be justiciable.

Restoring the power to the Lord Chancellor (put back in the Lords) to appoint – but not sack – judges would be helpful. Most governments wish to discourage activism, but it is difficult to see how hearings would help, as MPs would take different views. Secondly, the FTPA should be repealed, allowing government to proceed with its business – or resign and call an election.

The other key measure to heal this breach would be to disband this new court with its beguiling name – and restore Parliament as the highest court of the land by re-introducing the judicial committee of the Lords (the Law Lords) to replace the Supreme Court. While the current Supreme Court judges are members of the Lords too, bringing their institution back into Parliament would surely improve mutual understanding.

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Howard Flight: The damage that EU membership has done to our constitution is clear to see

Lord Flight is Chairman of Flight & Partners Recovery Fund, and is a former Shadow Chief Secretary to the Treasury.

Forty-five years ago the Wilson Government introduced an important change to the unwritten British constitution.

The first major referendum helped to address, politically, the then divisions within the Labour Party on Europe, but more importantly established the precedent of putting an issue of major national importance, above party politics, for the people to decide upon directly by a referendum.

Since then both Scotland’s position visa vi potential independence and changing the voting system to a PR basis have been decided by referenda. But the Remainer cabal has chosen to ignore the position and role of a major referendum in which the British people decided they wanted to leave the EU.

As Alistair Heath has pointed out, membership of the EU has already undermined our historic, unwritten constitution such that we will need to codify how we are governed, both to protect individual rights and liberties and to ensure that democracy can no longer be routinely subverted or disregarded by an arrogant, know-it-all elite. It will be a key component of a rebooted, newly-independent UK.

We should never again accept the dysfunctionality that has overshadowed the past few years, with MPs trying to cancel the most important referendum decision in modern British history and the Speaker abetting the creation of a parallel executive. We do not want a US-style Supreme Court, being encouraged to turn themselves into yet another set of legislators.

Our catastrophic membership of the EU, the leftward shift of the governing classes, the Blairite legal reforms including the 1998 Human Rights Act, the emasculation of other forms of local government, and the creation of the separate Supreme Court have all conspired to undermine our uncodified constitution.

It also requires politicians to allow unwritten conventions to guide their behaviour – a principal which Brexit Remainers have trashed.

The first and most important reform will be the repeal of the Fixed-term Parliament Act. Second, the power to conduct international treaty negotiations needs to be left solely to the Executive. But there are more. The Speaker needs to be bound by clear rules; an MP who wants to change party should be obliged to call a by-election; the second Chamber should be used more to appoint accountable, “special adviser”, ministers.

Too many decisions have been taken by the courts rather than resolved by democratically elected politicians. The courts should not be un-elected legislators. We need to allow direct and indirect democracy to co-exist, with voters able to force referenda as in Switzerland and US and the outcomes being legally binding.

David Cameron’s book, ironically, set out a powerful case for Brexit. He started out as a Eurosceptic who thought the irritations of the EU were a price worth paying for the free trade advantages. In power he soon discovered the horrors to which we had become exposed – the directives, the stitch-ups, the knives out for the City. He voted against a Eurozone bailout package which threatened to cost Britain dear, only to see the rules changed so the UK veto would not count.

In contrast to Germany’s unfailing ability to get what it wants, Britain’s has been non-existent. We have opposed only 70 pieces of EU legislation during the time of our membership, of which none have been accepted.

The process under which Jean-Claude Juncker became President of the European Commission also shocked Cameron, and he finally grasped that the EU process of powers being transferred to Brussels – and never taken back – is a formula to erode national democracy via the use of increasingly complex law and regulations.

In short, Cameron learnt how the EU grasped and exercised its powers – and became the strongest candidate for reform. He never explains, however, after so many losses, how he thought he could possibly achieve the necessary changes. It is even more difficult to understand how Cameron thought he could win the fight for reform by backing Remain.

There is nothing in his book explaining why he thinks EU membership is a good thing; nor is there a single example of anything emanating from Brussels that benefits Britain.

The best possible outcome of Brexit would be a Canada-style trade deal with the EU on the bulk of mutually traded goods, together with a clean exit restoring full British sovereignty.

‘On the Record’ effectively exposes why the latter is perhaps the most important. Britain’s great democracy has been squeezed inside an unaccountable EU bureaucracy. No-one else in Europe has been willing to challenge this, or give their voters the chance to escape.

The danger that, for the sake of a deal, full British sovereignty is not restored. Here it would be better to leave without a deal. While the Remainer cabal continues to plot and abuse the constitution in order to frustrate Brexit, it is extraordinary that they do not seem to realise that an even bigger and growing majority of citizens who, having voted Leave in the referendum, would not accept remaining in the EU

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Neil O’Brien: Fifty shades of conservatism

Neil O’Brien is MP for Market Harborough.

You might say socialism and liberalism are ideologies, while Conservatism is more like a character trait. But that’s not quite right. Socialism and liberalism are ideologies about maximising one thing, be it equality or freedom. In contrast, Conservatives believe in a wider variety of ideals.

So what kind of conservative are you?

Since the classic Liberal party gave way to Labour, we’ve been the party of the free market and sound money, even more so since the Thatcher/Reagan era. The free market is a such huge part of what we are about, it tends to dominate, but there’s much more to conservatism.

Perhaps you are a law and order Conservative: patron saint Thomas Hobbes, who, inspired by his experience of the civil war, observed that without strong authority and law and order, life tends to be “nasty, brutish and short.”

But in a nice example of how conservative ideas fit together, a strong law and order policy is also a One Nation policy: because who suffers when there is crime and disorder? Those who live in the most deprived fifth of neighbourhoods are 50 per cent more likely to be victims of crime than those in the richest fifth.

Or perhaps you are a constitutional conservative. Do you believe in keeping the Monarchy? A House of Lords that isn’t elected? Do you believe in keeping first past post elections, and an unwritten constitution? Do you believe in the common law and rule of law? Those ideas are more important now Labour believes in expropriation of your pension, your shares, your house, and anything else that isn’t screwed down.

Perhaps you’re a conservative because you believe in Liberty. Habeas Corpus. Limits on Government. Legal protection of personal and family life. Liberty always raises contentious issues like hunting or drugs. Or think of recent cases like the gay marriage cake. I thought the courts got it right: a business can’t refuse to serve gay people, but people can’t be made to promote political views they don’t hold, even if I disagree with those views.

What do we think about the growing deployment of live facial recognition technology in public places? Liberty lovers might want to ban it. Law and order fans might want to allow it.

Liberty-loving conservatism can also clash with another ideal – social conservatism. Are you worried about family breakdown? What do you think about transgender issues? What do you think about full facial veils? That question pits liberty against traditional pattern of our society. France banned them, we allow them.

Do you think what you get out of the welfare system should be linked to what you put in? And how should we make choices about immigration: do we just think about migrants’ skills and earnings, or how easily they will integrate into our culture? I incline to the latter view.

One big idea that I think fits under social conservatism is the idea of the nation state. National self-determination and the lack of a shared European demos powers the idea of Brexit, but it also explains why we are prepared to make compromises to try and keep the United Kingdom together.

Zooming down from the nation to the individual, conservatism is about individual self-reliance. That’s why we strongly support individual home ownership. Mrs Thatcher expressed this well. She said that people: “are casting their problems at society. And, you know, there’s no such thing as society. There are individual men and women and there are families. And no government can do anything except through people, and people must look after themselves first. It is our duty to look after ourselves and then, also, to look after our neighbours.”

Things like the doubling of the Income Tax Personal Allowance and the National Living Wage – and also welfare reforms – are about self reliance. George Osborne was onto something when he talked about a “higher wage, lower tax, lower welfare spending” society. Personally, I believe tax should be based on the ability to pay, and so we should bring back the higher tax allowances for children Labour abolished in the 1970s.

But conservatives don’t just believe in individualism. We are the society party. Civic conservatives know that many problems can’t be solved by either the free market or the state. David Cameron said: “There is such a thing as society, it’s just not the same as the state.” When we think about problems like loneliness in an ageing society, we can only solve them by catalysing and helping voluntary groups and family life. The Big Society may have been a good idea, badly timed. But the ideal of voluntary action remains very attractive, I find particularly to younger conservatives.

Conservatism is also about gradualism. Burke attacked the French revolution as a huge, risky, leap-in-the-dark.
Gradualism is behind all our biggest policy successes. Welfare reforms started under Peter Lilley, continued under New Labour, and then under another Conservative government – and now have the record employment. The academy schools programme also spanned governments: from Kenneth Baker to Gavin Williamson.

In contrast, Socialists believe in utopian leaps. In the USSR and under China’s Great Leap Forward millions died, yet John McDonell still says, “I am a Marxist”. In contrast we should be proud gradualists. What do we want? More use of evidence. When do we want it? After randomised control trials.

As well as gradualism, Conservatism is about pluralism and decentralisation. Environmentalists have shown us why it is dangerous to have a monoculture of anything, because if things then go wrong, they do so on a huge scale. Think about the Irish potato famine.

Take a more recent policy example: during the heyday of disastrous progressive teaching methods, they swept all before them. But independent schools and grammar schools were a bastion for traditional methods (like phonics), which could then make a comeback after trendy methods failed.

Devolution allows experimentation. In the US they say the states are “laboratories of democracy”. Ideas like welfare reform or zero tolerance policing were tried locally and taken up nationally when they worked. Conservatives also believe in pluralism in a deeper way. People have different ideas of the good life.

That’s one reason I think we should keep the honours system – to recognise those who are motivated by something other than money, whether they want to serve their country on the battlefield, or help their community by running a youth club. That should inform our thoughts on things like childcare. Do we just focus on maximising employment or education? Or let people choose if they want to be stay at home parents?

I’m sure readers will point out things I’ve missed. But those are some of the main elements of Conservatism.
Law and order. The Constitution. Liberty. Social Conservatism. Civic Conservatism. Individual-self reliance.
Gradualism. Pluralism. Ideas that are sometimes in tension, but which fit together.

Conservatism is a bit like the roof of parliament’s Westminster Hall: which is held up by a lot of huge, ancient beams all resting on each other. Likewise, the elements of conservatism fit together, and have also made something really strong and enduring.

This article is based on a contribution by the author to a Centre for Policy Studies event, “Free Exchange: The case for conservatism”, at last week’s Conservative Party Conference.

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Henry Hill: Johnson’s compromise risks laying another time-bomb under the Union

This morning’s papers are full of stories about whether or not the Prime Minister can cobble together a Commons majority for his latest proposals.

But despite reports that both a number of the ‘Whipless 21’ and a significant number of Labour MPs, might be prepared to walk through the lobby with Johnson and his Democratic Unionist allies, it is not yet at all clear that the EU will accept the plan.

Or, indeed, that they’re even meant to. It is not implausible to suggest that Boris Johnson’s plan, which involves both establishing a customs border on the island of Ireland and giving unionists a veto on breaking from alignment with the mainland, is intended more as a bid to make the Government appear the reasonable party in the event of a no-deal exit – although Tom McTague suggests this is not the case:

Even if they’re sincere, the path to a deal is fraught. As Greg Hands hinted at in ConservativeHome’s conference fringe on his Alternative Arrangements Commission, London and Dublin are not really trying to find different technical solutions to the same end-point. There is a political misalignment between what each side considers an acceptable level of post-Brexit continuity, and absent the threat of a no-deal exit the Irish Government has little motivation to, as McTague puts it, “step down from perfection.

Which is not to say that these proposals would not, if accepted, represent a serious concession – perhaps even the first of many – even if Ulster would theoretically re-align with Great Britain in 2026. One commentator has suggested that Britain becomes “more federal”, but that isn’t really accurate when he admits it likely involves an “enhanced” role for Ireland in the governance of British territory.

Owen Polley, who used to work for the Northern Irish Conservatives, sets out the problem in CapX:

“If Northern Ireland is under the political and economic control of the EU until 2026, while the rest of Britain forges an independent trade policy, that situation will become the status quo. It will have practical consequences that weaken the Union and the eventual political convulsion required to reassert British interests in Ulster will be more traumatic.”

Concluding, he adds:

“Even if the Government’s ‘final offer’ is designed to provoke Brussels into issuing a rejection and bringing about ‘no deal’, as Boris Johnson’s critics allege, it compromises the important principle that Northern Ireland should have the same relationship with the EU as the rest of the UK, after Brexit.”

This last is particularly important because, although it seems to have been at least temporarily forgotten by all involved, there was once another reason why unionists were opposed to the backstop. Notwithstanding the specific case of Northern Ireland, they worried that it might set a precedent which would allow other separatist parties, most obviously the SNP, to demand special treatment in turn.

Readers may remember that this ended in a badly-justified u-turn by Ruth Davidson and David Mundell, with Adam Tomkins sent out to try to explain why differential treatment for Ulster had suddenly ceased to be a threat to the integrity of the United Kingdom.

It is worth remembering, if three years of wrangling over the Belfast Agreement wasn’t reminder enough, that there is a huge, qualitative difference between any level of devolution delivered inside the UK’s internal constitutional settlement and baking divergence into an international treaty. Much like Theresa May’s lamentable capitulation over “post-Brexit devolved powers”, Johnson risks escaping a tactical difficulty only by conceding and setting in law principles which undermine the integrity and even legitimacy of the United Kingdom as a nation-state.

Both have accepted, intentionally or not, a position which posits that the UK is less entitled to institutional integrity and coherence than the European Union – Johnson in the manner set out by Polley, and May by legitimising the idea that market-coordination powers may be legitimately pooled in Brussels but not in London.

So far the SNP using the backstop to demand a similar deal for Scotland has been the dog which hasn’t barked. But even if it doesn’t, the Prime Minister must be more careful about laying time-bombs beneath the foundations of the Union. He will already have to devote considerable energy post-Brexit to defusing those bequeathed by his predecessor.

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Andrew Gimson’s Conference sketch: No riot in Manchester, Rees-Mogg and Gauke applauded

Westlake Legal Group unnamed Andrew Gimson’s Conference sketch: No riot in Manchester, Rees-Mogg and Gauke applauded ToryDiary The Moggcast Paula Sherriff MP Paul Goodman Lord Ashcroft Jo Swinson Jacob Rees-Mogg MP House of Lords George Osborne Dominic Cummings David Gauke MP Daniel Hannan MEP Constitution and democracy Anand Menon

There was no riot. David Gauke was not torn limb from limb by infuriated Eurosceptics when he appeared this morning in the ConHome tent.

The wreckage of the ConHome marquee does not now lie in a bedraggled heap outside the Midland Hotel, with fire officers picking through the sodden canvas to see if they can find any more survivors, or at least gather up what pitiful personal effects can be rescued – a signed copy of an early pamphlet by Daniel Hannan, blamed unjustly for setting the trouble off; a column by Boris Johnson which included some remarks in questionable taste, triggering a national debate which raged for several days; even a monocle which a dodgy antique dealer will by next week be advertising as having been worn by Jacob Rees-Mogg himself.

No, Conservatives do not riot. They do not, at least, riot during the party conference. Shouting, drinking too much and staying up far too late are as bad as it gets.

And neither Rees-Mogg nor Gauke, both of whom took questions, in succession rather than together, in the ConHome tent, is an incendiarist.

Rees-Mogg used humour, including self-mockery, to carry people with him. He was, admittedly, before his home crowd, recording an episode of the Moggcast, his  ConHome podcast.

Paul Goodman pointed to a recent headline in The Mail on Sunday, above an extract from Michael Ashcroft’s biography Jacob’s Ladder, which described Rees-Mogg as “The World’s Most Unlikely Sex Symbol”.

Rees-Mogg agreed that this “doesn’t sound like me at all”. He also mentioned his own recent book,The Victorians, a work not received with universal enthusiasm, and said he believed it could still be found in some bookshops, “perhaps second-hand”.

He urged his listeners to imagine what was like to be a Remainer, with “30 days to hold on to the thing you most love”.

This accounts for their “fanaticism”, and their “very strong” rearguard action: “They will throw any bit of mud at Boris Johnson they can find.”

The House of Lords has treated the British people, who voted Leave, with disdain: “The Duke of Omnium could not be more condescending to his lowliest tenant.”

The Moggcast will be published on this site, so need not be quoted extensively here. He ranged with playful seriousness over the whole scene, defending freedom of speech, expounding the principles of the British Constitution, declining to comment on the Supreme Court judgement – “too raw” – and expressing an amused sympathy for the Liberal Democrats, caught between the desire to stop Brexit, and the knowledge that if they go into coalition with the Labour Party they will be destroyed.

On the great question of whether to readmit the 21 Conservative MPs, including Gauke, from whom the whip has been withdrawn, Rees-Mogg said he ‘always believes in politics in being as generous as you can possibly be’, but ‘you cannot have a situation where people are trying to put Jeremy Corbyn in charge of the order paper’.

When George Osborne was Chancellor of the Exchequer, he would “uncork the Gauke” whenever the Commons was infuriated by some measure, and lo, by some indefinable mixture of sympathetic understanding and studied dullness, Gauke would restore tranquillity.

Gauke did the same in the ConHome tent, though he was not dull. There was standing room only when he entered, punctual to the minute, to take questions from Professor Anand Menon, Director of The UK in a Changing Europe, joint hosts of the meeting.

The identity of Gauke, and of his conservatism, came under scrutiny. He said he had entered Parliament as a Eurosceptic: “I’m not someone who whistles the Ode to Joy in the shower and I don’t look good wearing a beret.”

He observed in a pained tone that the report in The Mail on Sunday that Downing Street is investigating “foreign collusion” by Remainer MPs “leaves a nasty taste in the mouth”.

In Gauke’s view, “we’ve got to find a way of lowering the temperature in the debate. We shouldn’t impugn everybody’s motives all the time.”

He added that “the chances of getting Paula Sherriff” – the Opposition MP whom Boris Johnson recently accused of “humbug” – “to defy a three-line whip to get Boris Johnson out of a hole are not high.”

By giving an “implausible and inaccurate” justification for proroguing Parliament, Johnson had provoked the system to “bite back”.

Instead of trying to harden divisions, Johnson should “change the strategy, change the strategist” – i.e. sack Dominic Cummings.

But Gauke added that although he does know Jo Swinson, the Lib Dem leader, “reasonably well, I am not a Liberal Democrat”.

Nobody shouted “Yes you are!” The temperature in the tent was by now appreciably lower than when he entered it, and it would be surprising if anyone in the audience doubted his sincerity.

Let other parties tear themselves apart if they wish to. The Conservatives don’t want at this fraught juncture to fight each other, a point the Prime Minister may understand better than some of his critics do. The eerie atmosphere at this conference is the calm in a party which still hopes to come back together.

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The myth of judicial infallibility looks increasingly both absurd and dangerous

The moment the Supreme Court announced its astonishing judgment against the Prime Minister’s advice to prorogue Parliament, the public law spin machine went into action.

It is a central fiction of common law that judges make ‘discoveries’, rather than decisions. The law has somehow always existed as the judges interpret it, even in the case of the most surprising judgments.

But as I wrote in the Daily Telegraph, the sheer speed with which this case was brought has undermined the manufacture of this myth:

“Normally this retrospective revision of received wisdom takes place over time, aided by little sustained interest in the evolution of public law from either politicians or the media. Here instead the entire process has taken place amid the full glare of public scrutiny, and legal commentators have been forced to perform a complete u-turn on the legal viability of Gina Miller’s case in less than a fortnight.”

There is something slightly absurd about the speed with which this ‘ret-conning’ has taken place. One would scarcely know, from reading yesterday’s reactions, that it was only this month when the High Court comprehensively rejected Gina Miller’s legal challenge, or that that case was heard by three of the country’s most senior judges outside the Supreme Court (the Lord Chief Justice of England and Wales, the Master of the Rolls, and the President of the Queen’s Bench Division).

Were the Supreme Court’s decision as obvious and inevitable as is now pretended, that ruling would have been met with outrage. Yet it wasn’t, because it represented the orthodox understanding of the constitution.

For the legal case for disagreeing with yesterday’s judgment the best I have seen is this one, by Charles Day in the Spectator. He explains the way the judges effectively invented a statute, and the thinness of the historical precedents cited in their piece.

Meanwhile on this site Sir Stephen Laws has set out how the Court failed to factor the conduct of Parliament into its assessment of the constitutional balance of power. (This is apparently a fairly common judicial blindspot as Lord Sumption also failed to address it in his article for today’s Times.)

He is right to point out that the judges were not protecting Parliament from an over-mighty executive – as they might have been had Johnson been trying to evade a vote of no confidence – but are instead buttressing a recalcitrant House of Commons which refuses, for pure political advantage, to wield the proper tools at its disposal for disposing of a government.

Personally I have set out elsewhere how I think that this case could yet provide sceptics of judicial overreach with their ‘Maastricht moment’, a galvanising shock which hardens a tendency into a movement.

But no element of the constitution exists in isolation, and the past 24 hours have shown that some of those who support yesterday’s ruling are trying to wield it in ways which make the common law fiction of retro-active inevitability not just absurd, but sinister, because it is fuelling calls for what amounts to retroactive justice.

This is most apparent in Sir Keir Starmer’s call for Geoffrey Cox to “consider his position” for having provided the Prime Minister with legal advice which turned out to be inaccurate – despite his opinion reflecting the overwhelming consensus at the time and having been upheld in the courts of both England & Wales and Northern Ireland prior to the Supreme Court’s verdict.

It can be seen too in the outrage which has met Boris Johnson and Robert Buckland, for example, saying that whilst the recognise that yesterday’s judgment is the law, they disagree with it. Some of their critics are making the case that you cannot legitimately disagree with – not defy – the judiciary.

For people who claim to be motivated by concerns about capricious and unaccountable power, this combination of attitudes is telling. It would lend to the courts some of the worst features of a pre-modern monarch, with citizens and ministers not only at legal risk from retroactive justice but also forbidden from criticising it by a form of lèse-majesté. When I previously compared the Supreme Court’s advocates to 21st-century Cavaliers I didn’t imagine they would take me so literally.

The myth-making which is central to Common Law ideology exacerbates this problem because it generates a fiction of infallibility and encourages herding on the part of lawyers and informed commentators, which then strengthens the fiction in a vicious cycle.

We can see evidence of this in the suggestion that the Supreme Court’s decision was unanimous not because all eleven judges actually agreed with the reasoning in the judgment, but because those who did not chose to row in behind the majority in order to maximise the power of the result. If true they have denied both the public and the historical record their true opinion, sacrificing a truer reflection of the balance of legal opinion in order to bolster their institution.

This herding tendency can also be seen in Lord Sumption’s op-ed today. It is indeed remarkable that the man who delivered the controversial Reith Lecture ‘Law’s Expanding Empire‘, and published only last month a book on ‘law and the decline of politics’, should accuse the Prime Minister of “constitutional vandalism. But it is even more remarkable given that he himself was arguing less than a month ago, in the very same newspaper, that Johnson’s prorogation was legal. Law’s imperial armies appear to have captured Lord Sumption’s foxhole.

All of this highlights a crucial point: any discussion of technical remedies to the current constitutional challenge, be that restoring the Judicial Committee of the House of Lords or imposing statutory restraints on judicial review as Australia has done, must be accompanied, and indeed preceded, by a strong narrative counter-attack on the common-law myth of judicial infallibility.

This is not just a legal fight, and it would be foolish for champions of the political constitution to give battle on the enemy’s favoured terrain. As JAG Griffith argued in his famous 1979 essay – which anyone interested in this subject should seek out – the gravity of political power affects the law. And in a democracy, winning political power means having a compelling story to tell the voters.

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WATCH: Would you prorogue again? “Let’s wait and see…the lie of the land”, Raab tells Marr

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Henry Hill: Belief that DUP are softening their position raise hopes of Brexit deal

Are the DUP preparing to fold on the backstop – provided it’s called something else?

The Irish Government have confirmed that they are engaged in “secret Brexit talks” with London, today’s Daily Mail reports, amidst mounting speculation that a deal might yet be struck.

Simon Coveney, the Irish deputy prime minister, put this on the record as other EU leaders, led by Finland, revived the prospect of a no-deal exit at the end of next month by threatening to veto a further extension of the negotiations.

At the same time, the Democratic Unionists have fuelled fresh speculation that they are softening their opposition to Northern Ireland-only solutions to the challenges posed by the Irish border. Having previously insisted that the Province must depart on exactly the same terms as the mainland, Arlene Foster is now saying that the DUP will merely oppose anything which challenges Ulster’s ‘constitutional status’ inside the UK.

Such vague language could cover all manner of sins. Whilst it is almost certain that any deal reached won’t be called the backstop – the EU would need to make any retreat by Foster or Johnson look like a victory so they could sell it – we may yet see the Government fold on what has been the biggest sticking point to passing the Withdrawal Agreement.

Meanwhile Stephen Barclay, the Brexit Secretary, has urged Brussels to “take risks” and abandon its “rigid” approach to the border issue in a speech today.

Yet it hasn’t all been good news for Irish nationalism this week. A new study by two “top Irish economists” has concluded that any annexation of Northern Ireland by the Republic could be economically catastrophic. The Sun reports that: “a 32 county Ireland would cause a complete collapse of the Northern Ireland economy and hammer the standard of living in the Republic.”

This fits with earlier analysis by Irish legislators which suggested ‘unification’ would only be economically viable if the UK continued to pay its full present-day subsidy to Northern Ireland to the Republic for three decades after the event. As one self-aware Irish commentator put it at the time: “This could be a hard one to sell to the British.”

Meanwhile the Prime Minister continues to be enthusiastic about building a road and rail bridge from Scotland to Northern Ireland – a suitably Johnsonian grand projet which would make a big statement on the Union, deepen the Province’s physical link to the mainland, and could reportedly be done for much less than the cost of HS2’s London to Birmingham section.

Poll suggests SNP still have a mountain to climb

Nor has Scottish nationalism had a great week. After a flurry of priors-finally-confirmed excitement in recent weeks about a couple of polls showing support for independence at near-level pegging with opposition, this week saw the publication of a new poll showing that six-in-ten Scots back staying in the UK.

Even worse for Nicola Sturgeon, fewer than one in three support her policy of staging a re-run of the 2014 referendum within the next 18 months. More remarkably still:

“More than a third (36 per cent) of Yes voters in the 2014 vote now want to stay in the UK, the poll said, with protecting public services, Brexit and Ms Sturgeon’s performance as First Minister cited as the most important reasons behind their change of heart.”

This ought to serve as a welcome antidote to unionism’s omnipresent fatalism, a feature of which is the tendency to assume that a voter lost once is lost forever.

One feature highlighted by the poll is the importance of the question – a lesson well-learned by Brexiteers in 2016. Whilst in 2014 David Cameron’s policy was to make maximal concessions to the Nationalists in the hope of giving them no space to wriggle out of defeat (a policy he entirely undercut with ‘The Vow’), this time the pro-UK side appear completely alive to the importance of this particular battle.

It is therefore significant that the Electoral Commission have this week publicly slapped down Mike Russell, the SNP’s constitution secretary, for suggesting that the Scottish Government has the right to unilaterally decide what question gets put to the electorate in any second vote.

The SNP are understandably keen to lock in 2014’s question, which allowed them to run a campaign based on a naturally positive ‘Yes’ frame. ‘Yes’ has since become part of the separatist identity, and it’s loss in favour of a fairer question would be a palpable blow.

(Unionists ought also to ensure that the question references both what Scotland stands to lose as well as again, so ‘..leave the United Kingdom and become an independent country’ rather than merely ‘…become an independent country’, and so on.)

Meanwhile David Cameron has revealed in his new memoir that he asked the Queen to make her famous intervention in the closing stretch of the 2014 referendum. The former Prime Minister says he asked if Her Majesty could “raise an eyebrow” at the prospect of independence.

Commentary

A few pieces of relevant comment which stood out for me this week:

  • I contributed to Bright Blue’s new series on Johnson’s next steps to set out what the new ‘Minister for the Union’ needs to do to make good on his title.
  • Lord Trimble wrote on this very site about why the backstop breaches the terms of the Belfast Agreement. He ought to know, as he won the Nobel Prize for negotiating the latter.
  • Stephen Daisley has a great piece at the Spectator about taking a tough new line to curb Scottish nationalism. Attracted a vicious, vacuous, and now-deleted response from Alex Massie.

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Interview with Laing, candidate for Speaker: It’s “extraordinary” that whoever holds the office “is totally unaccountable”.

Eleanor Laing, one of eight declared candidates to become the next Commons Speaker, says “it’s time we did things a bit differently”.

She chooses her words carefully in this interview, as befits someone already serving as a Deputy Speaker. But she declares that if elected, she will not model herself on the current Speaker, John Bercow, who

“has said various things fairly publicly over the past few months which lead one to conclude that on some matters he might not be totally impartial.”

In her view, there is no need “to diminish people in order to discipline them”. She regards Betty Boothroyd, Speaker from 1992-2000 – whom Laing watched, admired and was helped by after arriving in 1997 as Conservative MP for Epping Forest – as a far better role model.

Laing deplores “the underculture of bullying that has been identified” at the Palace of Westminster. She says the Cox report, which came out almost a year ago, is “an important piece of work”, but is taking too long to implement, because there is no proper accountability:

“it is extraordinary that the Speaker of the House of Commons, almost uniquely for a person who has power and influence in a democracy, is totally unaccountable.”

In her view, this deficiency can only be remedied with the next Speaker’s consent, which if elected she would give.

She is perturbed by the case now being heard in the Supreme Court,

“Because if they take a controversial decision then they will be upsetting the very fine balance which is the basis of our constitutional settlement, between the legislature, the executive and the judiciary…and that is very dangerous territory.”

ConHome: “You’ve been a Deputy Speaker for six years, so you know a great deal about it, and have worked very closely with John Bercow, who has a very distinctive style. Do you intend to follow suit?”

Laing: “That’s a great question, and the answer is ‘No’. We are an always evolving institution here, and I think it’s time we did things a bit differently.

“I have sat in the chair for six years, so that part of the Speaker’s job I have experienced, and I know it quite well.

“And the way in which I keep order and direct the proceedings in the House is rather different from the way Speaker Bercow does it.

“Everybody has their own style and their own way of doing things.”

ConHome: “So how would you characterise your style?”

Laing: “I hope that I have exerted authority with kindness. I don’t see any need to diminish people in order to discipline them.

“It is perfectly possible to ask someone to conclude their remarks, or to require people to stop making a noise, or to sit down, or in some other way to direct the proceedings in the House.”

ConHome: “After you were elected an MP, you had three years with Betty Boothroyd as Speaker?”

Laing: “Yes, and I was an Opposition Whip for two of those years with Betty Boothroyd.”

ConHome: “So you were sitting very near to her.”

Laing: “Very near to her. Betty was really helpful, really instructive, and I watched very carefully how she managed the House.

“Women do things rather differently from men. There is a notable difference in style.

“Most women are not as big or as loud, or as physically strong, as most men. Therefore we have other ways of exerting our authority.

“And it goes without saying that I deplore the underculture of bullying that has been identified.

“I consider that the Cox Report is an important piece of work. It has been noted, but it’s taking too long to implement it.

“I wonder why? I don’t know why it’s taking so long to implement it.

“And that brings me to the question of who has the responsibility for doing so, and where is the accountability.

“What is the role of the Commission that is chaired by the Speaker? Who appoints the Commission? Where does the power lie?

“And the answer to this is it’s not clear. And perhaps it should be rather more clear, because there’s no direct line of accountability.

“I’ve experienced this at close quarters as Deputy Speaker. People ask me, ‘How is such and such a decision made?’

“And the answer is, ‘I don’t know.’”

ConHome: “That’s astonishing, if you’ve had six years intimately involved in the whole machinery.”

Laing: “If I don’t know how a decision is made then that is evidence that there is no accountability.

“And it is extraordinary that the Speaker of the House of Commons, almost uniquely for a person who has power and influence in a democracy, is totally unaccountable.

“And I think that one of the things we have to do differently, in this time of significant turmoil in the evolution of our constitution, is to consider the role of the Speaker and the governance of the House of Commons.”

ConHome: “So how would you make him or her accountable?”

Laing: “Well first of all, we all have to be very careful about making promises. Candidates for any role like to make promises.

“Now I want to be truthful and say there are few areas in which the Speaker alone can actually change things.

“But if we had a Speaker who was willing to become accountable, it would be easier for the House of Commons to put in place measures which would cause that accountability.

“If you have a Speaker who doesn’t want to be accountable, which would be carrying on the current tradition, I’m putting this very carefully…”

ConHome: “You can put it less carefully if you like.”

Laing: “I’m putting this very carefully. If you have a Speaker who doesn’t want to be accountable then it would be difficult for methods of accountability to be put in place.

“If I were to become Speaker then the first thing I would do is make clear that I do believe the office of Speaker should be more accountable; that there should be clearer paths of accountability in the way the Commons is governed.

“It would not be for the Speaker to make these decisions. It would be for a new Speaker to suggest that, let’s say, a select committee be set up, to look at all aspects of the governance of the House.”

ConHome: “What do you hope would come out of that? You must have an idea of what you would like.”

Laing: “Yes, I do. For example, such a committee might suggest that the term of office of the Speaker should be no longer than a certain number of years.”

ConHome: “How many?”

Laing: “Let’s say six or seven.”

ConHome: “There have been great Speakers who’ve done much more than that. But you think in modern times that’s simply not feasible?”

Laing: “No, in modern times, I think the current Speaker has done longer than anyone in modern times.”

ConHome: “So he’s done too long in fact?”

Laing: “Well, that’s not for me to say.”

ConHome: “What’s it been like working with him?”

Laing: “Well I’ve always got on very well with John. We’ve been friends for 32 years. We fought seats together in Scotland in 1987.”

ConHome: “You fought Paisley.”

Laing: “That’s right, and John fought in Motherwell.”

ConHome: “So you were much more local. You could give him some instruction, perhaps.”

Laing: “I don’t claim that I did that.”

ConHome: “But he wasn’t exactly a local boy.”

Laing: “No, but he was a good candidate, because he’s a good politician. I’ve known him since then and I’ve always got on very well with him.

“And yes of course, working with him on a daily basis for six years, I haven’t always agreed with everything he’s decided, but I’ve always respected his right to make certain decisions.

“And I do know that he is assiduous, he’s dutiful, and effective. And yes of course he comes in for a lot of criticism, because he has been controversial, but he has achieved a lot as Speaker.”

ConHome: “On the accountability point, I was a parliamentary sketch writer when Michael Martin was Speaker, and there was accountability in the end, his position became untenable in 2009, but that was obviously in rather extreme circumstances, because there was a tremendous crisis over MPs’ expenses which he was seen not to have risen to.

“But I do remember the Chamber becalmed during the afternoon, almost nothing happening, you got to Question Three on the Order Paper if you were lucky, and it seemed almost impossible to debate anything which was actually happening in the outside world.

“And obviously Bercow did revolutionise that.”

Laing: “Yes. His use of Urgent Questions has been excellent. He set out to make the Government more accountable to Parliament and that’s a worthy ambition, and one which he’s achieved.”

ConHome: “But do you agree with most of your Conservative colleagues that he’s in fact a biased Speaker?”

Laing [after a long pause]: “I think the way he conducts the business of the House from the Chair is reasonably impartial. But he has said various things fairly publicly over the past few months which lead one to conclude that on some matters he might not be totally impartial.

“The funny thing is, I think one of the roles that the Speaker ought to play is to give voice to minorities. And John has said that’s what he wants to do, and to a very great extent he’s done it – Urgent Questions, Emergency Debates etcetera – and he’s also been very good at opening up Speaker’s House for charitable organisations and others to come in, to give them a base in Parliament to put their views.

“If I were to be his successor, I would hope to continue all these good things he’s done. But it’s rather ironic, is it not, that currently, the minority of Members of Parliament, who desperately want their voice to be heard, are MPs who support Brexit.

“Leaver MPs are the minority, and its rather ironic that it’s the voice of the majority that’s coming through so strongly, and the minority is struggling to be heard. I put it no stronger than that.

“Traditionally, the majority of MPs in the governing party are not usually the minority. But right now they are. The largest proportion of MPs in the party of government are a minority, and there’s no protection for them.

“But the Speaker would argue, I’m sure, that what he’s done in recent weeks is to implement the will of Parliament.

“And I recently as Deputy Speaker took a couple of decisions which were controversial and which I think were correct because they were implementing the will of Parliament.

“In the Northern Ireland Bill, where a large number of MPs had put down new clauses in respect of abortion rights for women in Northern Ireland, and in respect of gay marriage in Northern Ireland.

“And it was a finely balanced decision whether to allow those clauses to be debated and voted upon.

“And because it was the Committee stage, the decision fell not to the Speaker but to me, on that particular day.”

ConHome: “How long did you have to make up your mind?”

Laing: “About 24 hours. And I looked at it very carefully, and I read every reference I could in Erskine May.

“Sometimes people call Erskine May the parliamentary Bible. I really do treat it like a Bible. I love Erskine May, I care about Erskine May, it sits up there beside my desk at all times, and I look at it frequently.

“But then I’m a lawyer. I can’t help that. It’s part of the way your mind works as a lawyer.

“And when I took those decisions, I knew it would be controversial, and I knew they would be very unpopular with some people. But in both cases the matters which I had allowed to go to a vote were carried by enormous majorities in the Commons, and therefore I was implementing the will of the House. And I believe that’s what the Speaker should do.”

ConHome: “While also standing up for minorities.”

Laing: “Well that’s it. That’s the balance. And it is difficult.”

ConHome: “What do you think about the case now being heard in the Supreme Court?”

Laing: “Well what I will say is at the point where we’re having this conversation, the Supreme Court is sitting and we don’t know what they will decide.

“And I’m nervous about it. Because if they take a controversial decision then they will be upsetting the very fine balance which is the basis of our constitutional settlement, between the legislature, the executive and the judiciary.

“It’s like a three-legged stool, and if you change that balance, you change the creature, and that is very dangerous territory.”

ConHome: “If you become Speaker, will you wear the proper robes?”

Laing [after a pause]: “I hadn’t thought about that. I don’t think we need to bring wigs back, although of course it would be tempting, because you wouldn’t have to bother doing your hair in the morning.

“It would be tempting to think of putting on a wig because that would save time with the hair dryer.

“But I would say what is important, one of my watchwords, is dignity. What I would like to see is a greater degree of dignity restored to the House of Commons, and to the role of Speaker.

“And what is worn in the Chair is part of that dignity.

“Dignity, kindness, authority rather than bossiness, and I do believe that those things could be brought to the Chair by a woman.”

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