From the Conservative Conference 2019

The atmosphere is electric, the attendance busy, despite the Commons trying to scupper it, and the events around the fringe are looking significant – they are the place to be seen. Talk is excited, but nervous. Faces leap out of the crowd, reminding you that even Cabinet ministers are just like us and here with us. The thrill can be felt in your fingers. I almost wish I were there.

The star of this show is Boris Johnson, and all will turn on him, in a way that has not been the case for any other Conservative leader since Margaret Thatcher.

So why am I not there? I’ve nothing against Manchester. I quite like the city actually: Cottonopolis, the finest provincial great city that’s not managed to be Edinburgh, the master of South Lancashire. I should be there.

I am not there. Well, for one thing there is the cost of a ticket and of hotel rooms over the conference week. (I once tried booking a hotel room in Cardiff at the same time as a NATO summit and found the prices doubled and more – and that was only for Barack Obama: imagine what Boris Johnson can do.) The ticket price is worth it if you are getting involved. I just suspect that I would be a wandering body unseen at the edge, making journalistic notes for articles I might never write, believing that appearing in this glittering company will be the opening of a sparkling new political career, and leaving again still unnoticed. In the meantime, I have a full-time job and a family to look after.

Actually, I am saying this without having been to the Conference before, so I may be being utterly unjust.

I keep being encouraged to go, and by some serial conference-goers my absence is incomprehensible. It has just never been a priority. They don’t seem to miss me, and I have to work to eat.

All the same, there must be a buzz at being where the power is, or where the power wishes to be (or where the power thinks it is anyway). There would be the chance, I would dream, that I might be able to make my voice heard by asking a pointed question at a minor fringe event, or at one of the social functions I am told are there, but that buzz has never overcome my reluctance. I’m shy, you see.

Now I wish I were there… I have a speech ready too. Then the cold hand of pessimism falls and I expect that I would just be sitting in a hall with my back aching on a hard chair, clapping at scripted speeches and occasionally recognising people I have seen on the telly or passed in a corridor in Westminster. If you’re someone who is likely to be called to give a speech – go. My name always seems to get missed.

I have a brilliant and uplifting speech on Brexit prepared, but I somehow doubt that it will ever see the light of day. Maybe I will publish it here one day.

There is a week to go, and many things will be said and happen, and promises made that our Zombie Parliament will be unable to pass. This is the opening for a General Election campaign that might never happen. (It would be nice if our constituency had a candidate of course. I’ll do it if no one else will, if CCHQ can process my candidate application in time, but there must have had thousands to go through, and as I said, I am used to my name being missed.)

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By Boris Johnson:

By David Cameron

By Tim Bale

Brexit

Others

By Liam Fox:

By Jeremy Hunt:

By Rory Stewart:

What is judicial review

Judicial Review is a vital mechanism to ensure the rule of law; but misapplied, it can defeat the rule of law.

Before going on to look at reforming the system, we need to know what it is, and the court statistics suggest that most people who go to law do not understand it.  Occasionally it seems, neither do the judges.

An article was promised on reforming judicial review, in the light of the recent wayward judgment of the Supreme Court. Before that can be written though, what is judicial review, and what is wrong, if anything?

That is a giant question. This post will be turned into a standing article over the weekend, with far more detail and analysis, but even that will be only a surface skim.

Judicial review is a procedure by which a court can restrain an administrative body or official from exceeding their lawful jurisdiction. Without these remedies, public bodies would run riot.  In the old days of the Court of King’s Bench, writs were directed at magistrates who had neglected to mend roads and bridges, or courts which heard cases outside their jurisdiction (or of which the King’s Bench were jealous; they practically destroyed cheap, local justice by using ‘creative’ interpretation of statutes to starve local courts).

Today the bureaucracy is bigger and the law governing it is full of tripwires, but the cases are still few, because authorities hire expensive lawyers to check the legality of everything they do.  Nice work if you can get it.

The quarterly statistics published by the Ministry of Justice show that of all the of judicial reviews begun, only 1% result in a win. That is a little misleading, as some must be settled out of court, but it shows how applicants are too ready to jump to a lawyer.

The biggest proportion of cases (about a third of them) are immigration and nationality cases.  These also take up a large proportion of all cases reaching as far as the Supreme Court.  The success rate is still just 1% though.

That 1% figure should encourage bureaucrats that they are in little danger of challenge, but actually it may be worrying: it means they are not taking risks, are staying too safe. I have sat and watched decisions being made, and this rings painfully true.

None of this tells you what the rules are, which is to say on what basis a court may take it upon itself to overturn a decision made by someone with authority. If a council is instructed by law to put all its signs in English and Welsh, and it just uses one language, then a court may intervene to uphold the law, but that is not the problematic issue. The problem is when a court strikes down an action which on the face of it is within the council’s powers, but which breaks the implied “Wednesbury rules”: that must be the subject of the detailed article.

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Cromwell despairs of Parliament again

This Parliament, which had seen how Cromwell had handled the two former, the long one and the short one, had surely learned the wit to behave themselves better to him than those had done?

Thomas Hobbes: Behemoth

What can we expect from Parliament, now that the House of Commons has returned, more turbulent than ever? After Parliament won the Civil War, it found itself dethroned by its own creature, Cromwell. Champions of Parliament today should take care. In previous posts I gave Hobbes’s own account of the events of 1553:

Cromwell had dismissed two parliaments in a year, and next called a more supine parliament, forced by oath to obey him. Now Hobbes continues his Socratic dialogue to describe the events he witnessed:

A.  The following year, 1654, had nothing of war, but was spent in civil ordinances, in appointing of judges, preventing of plots (for usurpers are jealous), and in executing the King’s friends and selling their lands. The 3rd of September, according to the instrument, the Parliament met; in which there was no House of Lords, and the House of Commons was made, as formerly, of knights and burgesses; but not as formerly, of two burgesses for a borough and two knights for a county; for boroughs for the most part had but one burgess, and – some counties six or seven knights. Besides, there were twenty members for Scotland, and as many for Ireland. So that now Cromwell had nothing else to do but to show his art of government upon six coach-horses newly presented to him, which, being as rebellious as himself, threw him out of the coachbox and almost killed him.

B.  This Parliament, which had seen how Cromwell had handled the two former, the long one and the short one, had surely learned the wit to behave themselves better to him than those had done?

A. Yes, especially now that Cromwell in his speech at their first meeting had expressly forbidden them to meddle either with the government by a single person and Parliament, or with the militia, or with perpetuating of Parliaments, or taking away liberty of conscience; and told them also that every member of the House, before they sat, must take a recognition of his power in divers points. Whereupon, of above 400 there appeared not above 200 at first; though afterwards some relenting, there sat about 300.

Again, just at their sitting down he published some ordinances of his own, bearing date before their meeting ; that they might see he took his own acts to be as valid as theirs. But all this could not make them know themselves. They proceeded to debate of every article of the recognition.

B. They should have debated that before they had taken it.

A. But then they had never been suffered to sit Cromwell being informed of their stubborn proceedings, and out of hope of any supply from them, dissolved them.

All that passed besides in this year, was the exercise of the High Court of Justice upon some royalists for plots.

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Action: a Powers and Bodies Bill

When we have a functioning Parliament, it must sweep away the encrusted chaos into which petty bureaucracy has descended. It threatens to overwhelm the state. Parliament is to blame; Parliament must sort it out (but Parliament is itself now is just as dysfunctional).

In July we published Our plan for the new Prime Minister, but he has had a lot on his plate.  One action could begin to clear the Augean Stables of Whitehall: a Powers and Bodies Act.

Initial heads of action for a Powers and Bodies Bill should include:

  • Register the Quangocracy;
  • Rationalise the birth and dissolution of quangos;
  • Codify judicial review;
  • Limit the abuse of power by privileged professional associations;
  • Restore the separation of powers.

In a series of articles I and others will look at each one of these aims, and maybe add more.

Register the Quangocracy

If we do not know what public bodies there are, how they are appointed and what money they receive, and how they overlap, then it is not possible sensibly to monitor them or reform them.

Private companies have to provide, on the public register, a registered office, their constitution and their accounts, and are given a unique identifying company number: that way, anyone doing business with them knows with whom they were dealing and where notices can be served. Public bodies, which get large wads of taxpayers’ money, should be no less transparent. A register would show who they are, how many there are, where they overlap (and so where there is redundancy) and who is responsible.

All public bodies derive their authority from elsewhere and must submit to Tony Benn’s questions: “What power have you got? Where did you get it? In whose interests do you exercise it? To whom are you accountable? How can we get rid of you?”

Rationalise the birth and dissolution of quangos;

  • (Future article to follow)

To rationalise the process of creating, managing and dissolving public bodies, look at what is done these days. It is typical for an Act of Parliament which decrees the creation of a new body to set out in detail its legal form, name, legal personality and such detail as the MPs passing it are unlikely to be bothered with, and Parliament does this time after time. It is not beyond the wit of draftsmen to lay down, in a Powers and Bodies Act, a standard constitution for any new public body, with variations and options perhaps, so that the next time an Act creates yet another quango it can do so in one line.

An advantage of standardisation, apart from saving reams of paper, is to make such bodies comprehensible and, when the time comes, abolishable.

This is the second strand then: a standard procedure for winding old quangos up, or merging or transforming them. If it is made easier, it will be less trouble to clear the detritus of old enthusiasms.

Codify judicial review

  • (Future article to follow)

Judicial review has expanded wildly since the Wednesbury decision, to beyond what any could then have imagined.  Once a rare occurrence, judicial review of administrative decisions is now commonplace.  We need judicial review as a remedy, to ensure the rule of law. The rules applied though are all judge-made law, never reviewed by Parliament, and so judges are free to expand their remit at will.

The astounding judgment of the Supreme Court yesterday claimed to uphold the constitution but in reality smashes through it, inventing rules where there were none.  That has been the case through throughout the development of judicial review.  In that case, rules must be laid down to bring certainty and an end to judicial adventurism.

There is no guarantee that the Miller / Cherry case is the high water mark of judicial intervention. They can go further.  Sir Stephen Laws speculated yesterday that a court might interfere even with the giving of royal assent in future: it would be but a small step of logic from Miller/Cherry. Foreign treaties and declarations of peace and war are now open to challenge.

Therefore it is for Parliament to supply what they have hitherto omitted to do: to define the law.

Limit the abuse of power by privileged professional associations

  • (Future article to follow)

Several professional associations have powers granted to them by Act of Parliament, and they may pretend that they are private organisations with whom the state may not interfere, but where they are exercising legal powers over their members and sometime over others, then they are acting as state bodies and must be accountable for any abuse of the power entrusted to them.

A body such as the Law Society or the Institute of Chartered Accountants has immense power, impose rules on their professions and to ban anyone from practising, or to impose a fine. Hitherto they have been trusted to act like gentlemen, and for the most part they do. However there is nothing to prevent those learned bodies from adopting wayward rules, for example to ban from practice those who belong to a particular political party. They may be coming close to excluding those who will not subscribe to certain minority social ideas. That would be an abuse of powers granted by Parliament, but there is nothing to prevent it.

Interim conclusion

These look like petty matters: a register, or how to create and dismiss bodies, or stopping privileged bodies from acting as they have not acted anyway, and for that reason they have not been addressed by Parliament. However the neglect of such petty matters has allowed for aggregation of inefficiency. Bring all this together, pass a Powers and Bodies Act with all these aspects, and both Government and Parliament will be able to bring back control of their creations and even achieve the ‘bonfire of the quangos’ which is constantly promised and never achieved.

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Supreme Tangle

First reaction to the Supreme Court ruling on the prorogation: What in the name of all that the law holds dear are they talking about?

Lady Hale (who is very pleasant in person) knows a thing of two, but one wonders whether her personal views, which she has not been shy of expressing, are coming out in this. The point about a judicial review is that a decision can only be overturned if it is made without authority, or outwith the extent of that authority or the purposes for which that authority was given. If the authority is from an Act of Parliament, you read the Act. For a prerogative power, there is no Act to read to tell the purposes for which the power exists. On what basis then is the decision made?

The full text of the judgment is telling. The relevant sections are not law: they are politics.

The sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament (subject to a few exceptional circumstances in which, under statute, Parliament can meet while it stands prorogued). An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty.

Parliament is not sovereign though (and neither is the Supreme Court): sovereignty is a partnership, a joint venture, and is vested in The Queen in Parliament. An unlimited power of prorogation does belong to the Crown and has previously been exercised, and no Act of Parliament has changed that other than do demand that parliaments be held “frequently”. There is no logical way to extend “frequently” to imply a rule that the Supreme Court is now implying; it is a made-up rule.

Furthermore, even into the twentieth century a three-month prorogation was commonplace. Now are we to believe that this was a scandalous, unlawful practice?

It appears that all the textbooks will have to be rewritten: the basic texts on constitutional law tell us that the Queen may call Parliament or not, but if she does not then taxes expire and the authority to maintain the army expires. The Supreme Court judgment seems to be saying that there is some hidden law, known to none but themselves, that says when a Parliament must be summoned and dismissed, and why. I hope that the judgment detail will explain when in the Reign of Queen Dick this law was passed.

Are we now to look at constitutional conventions in a new light? The textbooks all tell us that conventions are not law and can be changed by practice over time – are they now law, or must changes receive the assent of the Supreme Court?

I begin to suspect that in the change from “House of Lords” to “Supreme Court”, the justices have begun to model themselves too much on the American version, and the American Supreme Court is a satire on law.

The judgment was issued as a single, collegiate judgment in the names of Lady Hale and Lord Reed. We are assured was unanimous, but it is most improbable that it was. In the charged political atmosphere, it was politic to present the judgment as unanimous, to deter journalists and activists from targeting particular justices. More likely, the decision was reached by a bare majority. When the judges begin to retire over the next few years, we may learn more in their memoirs.

So now we find Parliament is not prorogued, and must return, in the middle of the party conference season, or be prorogued once again in different form (to be followed by another set of expensive legal proceedings, no doubt). The House of Commons which returns to the benches is the same, dysfunctional House as before of course.

The Constitution must be reliable. It used to be. Rules are laid down and can be followed. It is no longer so. If we ever have a functioning parliament again, it must be their duty to sort this growing legal crisis out.

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