The work begins: constitutional reform

The Constitution, Democracy and Rights Commission will be established probably this year.  Nothing in the Conservative Manifesto suggested radical changes in the constitution – it is, after all, a conservative manifesto – but Parliament would be failing in its duty were it not to knock a few blocks back into line where they have become dislodged.

Even a majority of 80 is not enough to overturn the fundamental elements even if that were tempting. The changes proposed are barely even changes. This reality has not stopped incontinent rages on social media.

The Commission from the first day must handle its work sensitively. The objective has been set out up front:  rebalancing our understood constitutional norms, strengthening the rule of law and strengthening the operation of democracy.  Momentum-type commentators like Owen Jones and his endless identikit clones are prophesying instead the destruction of democratic norms and the rule of law, rather like a socialist state I suppose:  this accusation must be met by such demonstrable practical contradiction that the likes of Jones are humiliated.

The motto for any Conservative with a position of strong political power should be one from Shakespeare:  “Oh it is marvellous to have a giant’s strength; but it is tyrannous to use it as a giant”.

The essential duty is to do the right thing.  Politically though it is not enough to do right – the whole process must be handled in an open manner with clear, unarguable objectives and all decisions must be traced to those objectives.  Left-wing commentators will claim credit for preventing a destruction of democratic norms (which is a lovely irony), so politically the derivation of the result must appear as a logical outcome of principles.

There is a trust issue.  It is legitimate for commentators to be wary of constitutional changes when there is a government with enough strength in the Commons to drive through almost anything. Trust must be won by demonstrating trustworthiness.

All this will not be enough to quieten shouty people on Twitter as reason does not rule in that sphere.  Lack of credibility does not stop people getting on Sky News to talk of their fantasies of tyranny. (In America, where not a jot nor tittle of the Constitution can be changed without 34 bickering states and Congress agreeing every word, there are Twitter warriors sincerely telling their followers that the President can cancel elections and rule for life.)  The answer to lunacy is lucidity.

Nothing grand will come of this – Parliament can do anything to the constitution, but members overwhelmingly believe in the system that got them elected. Dire warnings are welcome, but thy must be realistic to be credible, and so we start with what we know.

There will be popular and unpopular decisions to be made, and timing these will be crucial.  It is tempting to make unpopular choices at the beginning and finish the rest of the term with popular ones to boost poll ratings, but government does not work like that, and voters are not so daft either.  Tony Blair announced from the beginning of his time a series of measures to win over opinion, rebalancing power away from the government to the people, and the warm glow in opinion permeated through his period in office in spite of all the other things he did that centralised power more than had been seen in a generation. Establishing goodwill and trust early is valuable.

The problem areas for any government determined on doing the right thing are measures which do good but sound bad. Tax cuts for the wealthy may fall into that sphere. The most relentless drain on poll-ratings may be cuts and virtual cuts (‘virtual cuts’ being where money was spent as an exceptional item one year and is not available the next, or where the same money is switched to different priorities). We know this from day-to-day policy, that the right decision looks wrong, and this will apply throughout this parliament, sapping at support and trust. In that context of contested reforms and mistrusted motive, constitutional reform must be handled very delicately and with openness, but not at the cost of failing to do the right thing.

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If music be the food of love…

On Twelfth Night, the end of Christmas, naturally ones thoughts turn to the beginning of the year’s work, for we must all work hard to feed our families, but then there is always Shakespeare:

If music be the food of love, play on;
Give me excess of it, that, surfeiting,

The appetite may sicken, and so die.
That strain again! it had a dying fall:
O, it came o’er my ear like the sweet sound,
That breathes upon a bank of violets,
Stealing and giving odour! Enough; no more:
‘Tis not so sweet now as it was before.
O spirit of love! how quick and fresh art thou,
That, notwithstanding thy capacity
Receiveth as the sea, nought enters there,
Of what validity and pitch soe’er,
But falls into abatement and low price,
Even in a minute: so full of shapes is fancy
That it alone is high fantastical.

There are no more Christmas carols for us, but there is always music. Orsino knows the intimate connection between the sound of the harp and the sound of the heart.

I once saw a production of Twelfth Night in 1920s dress, which opened with a chap in a boater dancing almost Charleston-style to a gramophone and it did not quite fit the pained opening soliloquy, but even the band-tunes of the 1920s dance hall were aimed at the heart (and it needed a lot of work to make that decade jolly, to forget all that had been before, and the resentful division between those who had served and those who had not, and those who came home whole and those who did not).

However, we misread Orsino if we read only the first lines, as we usually do. Music is the food of love, or one food for it, and we sing the lines as if they were an invitation to conjure up love. Orsino though suffers from love. He loves Olivia and it is unrequired, and he wants to be rid of his affliction, and so he will be drowned in music so he is so full of the artificial love-feelings it generates that he is sick of them and will love no more. It is a dishonest trick though – he wants those emotions washing over him, until he admits it to himself perhaps and the music calls to him to well the remembrance that he can never be loved; ‘Tis not so sweet now as it was before. Is that the music, or the feelings of love?

Shakespeare knew what music could do, and his words were music in themselves. As he said elsewhere: “The man that hath no music in himself, Nor is not moved with concord of sweet sounds, Is fit for treasons, stratagems, and spoils;” (The bard does not say whether writing a political blog counts. I expect so.)

Great music is a powerful think to mould the soul, even to our own day. Ours is not an age without music, but the cacophony of popular singers and sickening lyrics might make you think so. Great music is still written these days, but you may not notice you are hearing it – it is written for films. There are composers today as great as there were in the classical age, writing for Hollywood not the opera. They move the soul as ever great music did.

In the play, Orsino is to be changed unwillingly. Enter Viola, who unwittingly returns to the theme as she goes to seek the Duke’s employment:

I can sing
And speak to him in many sorts of music
That will allow me very worth his service.
What else may hap to time I will commit;
Only shape thou thy silence to my wit.

And so the transformation begins, moving the affection from Olivia to Viola. The almost anagram of the ladies’ names is a clue to the muddles of the plot.

Orsino cast music aside, but not for long. He seeks the thing it engenders in his heart and he looks for it again:

Give me some music. Now, good morrow, friends.
Now, good Cesario, but that piece of song,
That old and antique song we heard last night:
Methought it did relieve my passion much,
More than light airs and recollected terms
Of these most brisk and giddy-paced times:
Come, but one verse.

The old and antique song is what we all seek. Though it seems a cultureless age, there is something eternal in music worthy of the name that ensures it cannot disappear.

Wednesbury reform will not reverse the Cherry / Miller decision

Team Boris has turned to reform of judicial review, as I have argued they should several times over the last few months.  However a simple change to reassert the Wednesbury rules will not fix the system on its own. It will not overturn Lady Hale’s decision on the prorogation case (Cherry/Miller).

There is no avoiding going over old ground to some extent, but to avoid repeating everything I will refer to previous articles:

Few judicial reviews actually succeed (about 1%, plus some out-of-court settlements) and this has kept the procedure out of the headlines until the recent Gina Miller cases, which are the reason for the sudden interest in reform. There have been troubling decisions in past years though (as other articles outline), and it is just that their political impact was limited.

Even amongst the claims brought by ‘Remainiacs’, it is only the last decision, the prorogation case, which stands out as a wildcard decision, and one wrongly decided in the opinion of much of the legal profession.

The Wednesbury rules are the main focus of comment and are widely cited with approval. These are a good, principled set of rules for judging the propriety of administrative decisions where the authority is granted by statute and that statute intends that the powers be used for a particular purpose. Therefore a power of compulsory purchase granted to enable infrastructure projects should not be used instead to acquire land for property speculation, and a power to impose planning conditions should not be used to get the developer to provide a new, unrelated civic facility (which are both genuine examples).

However, the Wednesbury rules were invented by judges out of necessity for lack of any guidance from Parliament. As a result, the rules can be stretched by a judge who wants a particular result. Leading judgments emphasise that decision-makers make decisions by their own discernment and judges may not substitute their own ideas, but in other judgments a judge has found a perception of a flaw through which he may crawl to strike down a decision he does not like. All this is because Parliament has hitherto failed to do its duty in defining rules for the interpretation of the powers it has granted. It is for the authority granting a power, namely Parliament, to define what power it is granting.

Once the rules can be defined on the original, Wednesbury principles and Dicey’s concept of the rule of law, then mission-creep can be restrained. That still does not affect the Cherry/Miller case though.

A change in the law will not always change the judgments. Statute law is black and white, but it is interpreted by each judge. There are several examples of judges deciding that an Act passed to overturn a judgment has only really restated the existing law so no change is needed: in this you might think of the attempt to liberalise contempt of court after the Thalidomide case – the words “serious harm” are easy to read as “anything more than negligible harm”.

A point well made in the commentaries concerns interference with prerogative powers. This is not about making governments powerful but about the fundamental rule of law, which is a very Conservative concern. The Wednesbury Rules of reasonableness and purpose apply to delegated decisions because delegated authority is always limited authority, but the Royal Prerogative is primary power, not delegated, and so it should not judged by those limits, only by the actual extent of the power. Some judges have trespassed there, and each precedent invites a new trespass. That must be slapped down. It still does not affect the Cherry/Miller case though.

The Prorogation case of Cherry/Miller is unaffected by any Wednesbury reform.  Lady Hale was careful to word her decision not as a Wednesbury case nor as turning on reasonableness or proper purpose or what was said to The Queen, but as turning on a primary constitutional rule. This rule was hitherto completely unknown – or to put it plainly, she made up.

The Prorogation case is in a line of dangerous decisions treading on the common law constitutional understanding. It will be hard to ensure that no Hale-type usurpation takes place in the future, if judges are prepared to invent new rules, but curbing the tendency must help. This particular case would need a discrete rule, that “no common law rule limits Her Majesty’s authority to prorogue or dissolve Parliament nor the length of the prorogation or dissolution”. (No ifs; no buts: add any condition and you bring the whole Wednesbury apparatus into it.)

It is worrying if Parliament now has to think of constitutional fundamentals which some wild judge might think of overturning. It would be unthinkable for a court to invent a new condition to prevent Royal Assent to a Bill, for example, but an invented rule about prorogation that contradicts every textbook written in the last 500 years would have been unthinkable just a few months ago.

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The year begins – 2020

There is no time for our politicians, in any party, to sit back and enjoy the ride. The work began the moment they set foot in Westminster, and the time to the next General Election is ticking away; presumably 1 May 2024.

There are few unavoidable fixtures before the election.

It starts with Brexit Day, finally, on 31 January 2020.  This is then followed by negotiations to reach a free trade agreement, or the essential parts of one, based on the Political Declaration, before 31 December 2020.

The next is the Budget each year;

The local elections, and in particular the London mayoral election on 7 May 2020 (in which the egregious Sadiq Khan is expected to walk home in spite of his having been worse that useless in office).

The Olympic games in Tokyo in 2020: not political, but a national morale-boost, usually.

The creation of the Constitution, Democracy and Rights Commission is likely to happen in 2020.

Then the American Presidential Election on 3 November 2020 – which will determine the course of negotiations for free trade across the ocean, and by indirect influence set a tone for political debate.

First thing though: Brexit. Consummating the event must not be the end of the Brexit campaign as the following months and years will be filled with claim and counterclaim about the effect it is having on the economy, and the ‘Rejoiners’ must not be the only voice heard.  The statistics must therefore be available and up front.

That same spirit of openness and demonstrable achievement must permeate through the years ahead. The new blue north is not a given in four and half years’ time, and the generation too young to know the reality of socialism will continue to fill the electorate from the bottom. A great deal of trust must be built up in spite of a cynical age.

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New Year: new opportunities

A new year may be a chance to start afresh. We do not know what lies ahead (apart from consummating Brexit, at long last) and we tend to look at the past for what the future holds, but we should instead look to do better. The past years have contained ill-will, strife, foolishness. This year I would plead for peace in better understanding of each other.

We do need to look back to see what errors and failures of understanding there have been, what dishonesty in discourse and refusals of reason. If we understand these, then we can move to understand each other, if not to agree.

That paragraph contains a major flaw itself though: “we need to look back”, “If we understand”, “we can move” – but there is no “we”. There are individuals. There is you for one, me for another. I may start to understand more, or you may, but the majority will not and so the strife continues. Worse still, if by application of logic and reason a large number of opinion-formers and commentators reach that stage of understanding as to frame themselves within civilised, respectful discourse, they still face the incoming wave of deaf hatred from those who do not. What then are they to do to win anyone over?

To try to pin down in useful bullet points the reasons for unreason is going to contradict itself. To understand is to perceive patterns, as Isaiah Berlin observed, but he knew that the perception is illusion: we create patterns because it seems to render the chaos into a reasoned entity, but the reality is still chaos. Nevertheless, we make these patterns, and convince ourselves that they have truth behind them, and it is restful to have wrung this order from chaos, so a disagreement, a suggestion that the pattern-making is false, is a deeply personal attack.

Unless the mental barrier can be broken, the false pattern-making disrupted, then mutual understanding and acceptance of diverse opinions and emphases cannot be achieved.

There is a great deal more of this to be examined and mined from the writings of wiser man, not least from Isaiah Berlin and of course from Thomas Hobbes, the greatest of them all. It is late though, on a lovely New Year’s Day, and I can return to the subject later. I hope I can add some little help to the effort of mending a broken society, but even if I cannot, I beg everyone to make that effort and to promote civil peace, which as Thomas Hobbes observed, is by divine writ placed along with righteousness in the eyes of God.

For now though, may I wish everyone a happy and prosperous New Year.