Constitution

Theresa May, UK prime minister

Theresa May, UK prime minister  © Getty Images

The UK government is seeking to do as much of Brexit as possible without involving parliament. It does not want parliament to make the formal decision to leave the EU or even decide what type of Brexit the country should seek, and it does not want to keep parliament informed about the negotiations. The government is getting away with this because of the summer referendum, which, in fact, had no binding effect in law.

The Brexit referendum was a plebiscite, and plebiscites are paradoxical things. On the surface they are exercises in direct democracy, allowing the people to determine political questions for themselves. But in substance, they provide the executive with the means to circumvent and frustrate those other organs of the state that would otherwise provide checks and balances. Plebiscites seem liberal but they can be used for illiberal ends. Read more

Theresa May, UK prime minister

Theresa May, UK prime minister  © Getty Images

Wanting something to happen is never enough. More than mere desire is needed. This simple truth is obvious in the current state of Brexit policy in the UK.

The discrepancy between will and capability is not new. In the days following the Brexit referendum vote, the Conservative minister Rory Stewart made the distinction: there would be no shortage of political will, he averred, but the important question was whether there would be the political capability. That is still the key question. Read more

The Houses of Parliament

The Houses of Parliament  © Getty Images

It is one thing to assert “Brexit is Brexit” and quite another to make it come about. Any departure of the UK from the EU is not going to happen by mere incantation of a grand phrase. There also has to be some legal means. So what are the legal means by which Brexit can happen?

Some say it can be done by the prime minister (with or without cabinet) as part of the so-called “royal prerogative” – the legal fiction that a minister may exercise the remaining powers of the crown which have not been limited by statute. The prime minister can, for example, enter into treaties on the basis of the royal prerogative.

Others say it can only be by an Act of Parliament — and these people are willing to litigate the point. The argument here is that there is legislation such as the European Communities Act which give individuals rights under EU law so it is not open to the executive to frustrate or circumvent this statute. Primary legislation would therefore be needed. Read more

  © Getty Images

Not all problems have solutions. And the political problem now caused by the decisive Leave vote in the UK does not lend itself to any straightforward solution in practice.

Part of this is because there was never a good objective reason for the referendum in practice, and part is because the referendum did not have any legal effect. It was always an unnecessary referendum with no legal consequences. In legal terms, it was a glorified opinion poll. Read more

The third painting in the series, 'The Humours of an Election' by William Hogarth, 1755. Granger, NYC/Alamy.

The UK Conservative party is facing serious allegations and extensive investigations in respect of their campaign expenses at last year’s general election. Read more

BRITAIN-ECONOMY-BUDGET-POLITICS

The Houses of Parliament  © Getty Images

Public policy in England seems to have a rather illiberal tone at the moment. (And this post deliberately refers to England as, since devolution, it is increasingly hard to generalise about all the national governments in the UK.) Almost every day comes some new announcement about how the government wants to have more power at the expense of its citizens. Is England getting more illiberal? If so, how has this come about? And will any such illiberal trend continue?

First, the evidence of illiberalism. At its most stark, it is about life and death. In the last few weeks alone the prime minister has called for the army to be put above the law and for the law to be changed so as to make it easier for the police to shoot people. It would appear that David Cameron sees no role for the law in restraining those who can exercise lethal force on behalf of the state.

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The State Opening Of Parliament

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The Queen’s Speech last week had one notable omission: the firm commitment to a new Bill within months to repeal the Human Rights Act 1998 and for it to be replaced with a “British Bill of Rights”. Read more

It is a misconception to say Conservatives do not “do” human rights and civil liberties — yet Tory civil libertarianism wants the benefits of a libertarian approach to policy in certain cases without the means of placing such libertarianism on a sustainable basis. So Raab’s appointment as a junior minister at the ministry of justice is an intriguing move Read more

Michael Gove

Michael Gove  © Getty Images

The United Kingdom’s Conservative party no longer has to share power as part of a coalition. Now it has a majority in the House of Commons, one of the very first things the Tories want to do is repeal the Human Rights Act 1998 and replace it with something that purports to protect the rights of citizens but has a weaker connection to the European Convention on Human Rights. Getting rid of the Act is a long-standing objective of the Conservatives, and they now want to repeal it at speed.

According to the Guardian, repeal of the Act is an urgent priority for the new government:

The scrapping of the human rights act, a pledge included in the Tory manifesto, is one of the measures to be included in the prime minister’s plans for the first 100 days, when the Queen’s speech is delivered on 27 May.

The “pledge” is in the 2015 party manifesto, which contains the following statements about the Act:

We will…scrap the Human Rights Act and curtail the role of the European Court of Human Rights, so that foreign criminals can be more easily deported from Britain. [...]

The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. [...]

We will scrap Labour’s Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK.

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Procession Of Judges Marks Start Of Legal Year

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Imagine a politician making a clear and specific promise before an election. Imagine then, if you can, that politician breaking the promise when he or she is elected to office.

Is this the sort of situation where a voter should be able to go to court and obtain some legal remedy?

Usually when somebody lets you down over something important you can threaten to get the law involved. For example, if a debtor does not pay what is due, or if another driver does not take proper care and attention, you can sue the culprit.

And your rights to legal redress are not just for straightforward disputes: a well-brought legal action can halt an infrastructure project worth billions of pounds if the developer has put a foot wrong, and a judge in chancery will be perfectly happy on a Tuesday afternoon to rule that there is a worldwide complex trust preventing some absconder from misusing a victim’s assets. Where there is blame, there is usually a clever lawyer somewhere who can formulate for you a claim.

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Very few citizens of the UK appear to have any great interest in constitutional affairs. And, other than those with a passion for devolution of its constituent nations, there are probably a few hundred people who ever give constitutional reform any serious thought.

Many do not even believe that there is even a constitution in place; such things are instead what foreign folk have to cause themselves needless difficulties. A sincere concern with constitutional affairs seems the preserve of the Tory fogey or the academic radical, but is not the stuff of serious politics. Read more