Category: Constitutional Law

“The best time to fix a roof is…”

28th July 2026

We have three years to protect our constitutional arrangements before a possible radical illiberal majority at the next General Election

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There is enough time left, just about, to fix parts of our constitutional arrangements before the next general election. This is important, as there is a non-trivial possibility of a radical illiberal majority at that general election.

Of course, given our (largely Victorian) doctrine of parliamentary supremacy, and given the general deference our courts give to the executive, there is little which could be ultimately done to prevent the damage which a radical illiberal majority could do.

But the damage could be slowed down significantly.

For example, our current constitutional arrangements make it easy for ministers and departments to change and make law by statutory instruments, without any meaningful parliamentary involvement.

Making such secondary legislation subject to a distinct process involving parliamentary consideration would at a stroke check any attempt by an incoming government to inflict a raft of Trump-style executive orders on day one. Eventually a new administration could get round this obstacle, but it would reduce the speed of the assault.

Similarly, making it easier for citizens to challenge disproportionate executive decisions and secondary legislation would similarly make it harder for a new government to push through excessive measures.

And there many other things that could be done too, from making public procurement more transparent, to giving teeth (or even a tooth) to freedom of information laws, to limiting the powers of a new Prime Minister to create peers.

We could do so much strengthen the roof before this incoming storm. There may not, of course, be a storm. Maybe everything is going to be ok. Nonetheless, it would be worth doing anyway.

But we will not do any of this, even with three years to go of the current parliament, a period which provides more than enough time to force things through the House of Lords if need be.

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Over at Prospect I have reviewed an interesting paper by the Constitution Unit at University College London: Safeguarding the Constitution: Key Steps to Strengthen UK Democratic Resilience.

It is a paper well worth reading, and if TL;DR you can read a summary here.

There are some good proposals in there, and some nice-to-haves, but as I set out at Prospect, I think the recommendations are incomplete.

And as aver at the end of that article: our constitutional arrangements are vulnerable, and it is complacent to think otherwise.

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Constitutional change and a new Prime Minister

6th July 2026

Why fundamental reform is more likely than before, but still unlikely

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The United Kingdom is about to have a new Prime Minister.

As this blog has pointed out many times, changing Prime Minister mid-term is the norm in British politics. Since 1974 every Prime Minister has either entered office or left office between general elections, sometimes both. And there is nothing wrong or unusual with this, for we have a parliamentary and not a presidential system.

But the one thing a new, mid-term Prime Minister cannot point to is a fresh mandate, with a manifesto endorsed by a general election result. They are pretty much stuck with the same mandate.

Sometimes a new Prime Minister will break with the mandate they inherited. In 1990 John Major dumped the community charge (poll tax) notwithstanding it having been detailed in the 1987 Conservative manifesto. No sensible person doubted that was the right thing for him to do.

Generally, however, any proposed big change will be put off to the next election. There is often too much to do which is more urgent.

The new Prime Minister is likely to be Andrew Burnham, who has been open about supporting constitutional change and even now is expressing support for devolution and electoral reform.

But the eternal problem about constitutional reform is that it means those with power giving some of that power away.

Burnham has nice intentions about giving real power away, and maybe he will actually do something in office. And so on that basis it is more likely than before, but one suspects there is more than enough for a new Prime Minister to do, with the economy and taxation and defence and foreign affairs and so on. So constituional reform is still, on balance, unlikely before an election.

Over at Prospect a couple of weeks ago, I set out more thoughts on this.

Let’s see what happens.

Independence day

4th July 2026

A republic, if they can keep it – as Franklin said

The Trump slush fund appears to have been aborted – but the real problem about the ‘settlement’ remains

3rd June 2026

The root cause of this outrage is not addressed by this pruning

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The proposal for a ‘anti-weaponisation’ fund seems to have been dumped.

The acting Attorney General of the United States said at Congressional meeting yesterday that:

“We are not moving forward with the fund.”

Nor indeed moving in any direction with the fund.

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But the fund was a consequence of a more fundamental abuse of power which is still in place, and until that is hacked out there will be other problems.

As set out in previous posts, a contrived and inflated legal case was brought by Trump (and his son and his company) against the United States government, which was then purportedly ‘settled’ between the parties, though without court approval or even recognition.

The settlement – that is a contract – was then used as a legal basis to create rights and obligations of an extraordinary nature.

To allude to the eminent jurist Meat Loaf, one can do many things with settlement agreements, but one cannot do that.

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One provision of the supposed ‘settlement’ was the creation of the ‘anti-weaponisation’ slush fund to benefit various supporters of Trump. This audacious move now appears to have been aborted.

But other extraordinary provisions with a basis on what only a private contract are still in place.

This is an addendum to the supposed agreement:

This is a wide immunity for the plaintiffs – and others! – from more-or-less any action the United States treasury or revenue service could take against them. If the provision had effect, it would fetter the tax authorities, preventing them from doing a whole range of actions.

Such an immunity should, if it exists at all, have a solid legal basis – and should be approved or overseen by Congress.

But to base such an immunity on the shaky-flimsy basis of a private contract without any court recognition is, well, inappropriate.

One suspect that one purpose of the litigation was to get in place a ‘settlement’ agreement, where the opportunity would be taken to place wide-ranging obligations and restrictions on the tax authorities.

As reported in yesterday’s post the court has re-opened that litigation. If the litigation is now stuck out then there will not even be nominally a dispute, and without a supposed dispute there cannot be a settlement.

That would mean the above immunities would go too – to the extent they even exist at law.

So a lot still rides on what the court does with this re-opened case.

The slush fund seems to have gone, but will the rest of the ‘settlement’ go too?

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The odd setting up of what appears to be a corrupt slush fund for the allies of President Trump

22nd May 2026

In which a settlement agreement is pushed far beyond any proper legal limits

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Contract law is a fascinating subject: it is about how parties can create legal obligations and rights between themselves which otherwise would not exist.

Constitutional and other forms of public law are, of course also fascinating: for they set out what can and cannot be done by those charged with public power.

And when contract law and constitutional law mix, then the results are even more fascinating.

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The legal suit brought by President Trump (and his son and his corporation) against his own government is extraordinary for many reasons.

In particular two things stand out.

First, there does not seem to be a dispute capable of being adjudicated by a court.

Second, there does not seem to have been a settlement in any legally recognisable form.

To adapt a famous techie saying: bizarre in, bizarre out.

In reality the whole exercise is brazen corruption. Everyone knows this, though many do not seem to care. It is the sort of thing that should (but will not) lead to Trump’s immediate impeachment and removal from office.

But, this being a law and policy blog, let us go though the motions of looking at this racket from a legal perspective. If anything, it will show what an odd thing is going on.

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As this blog has already set out (as well as at this Prospect piece), the law suit was a rum affair.

That is not to say there was not an underlying legal wrong: the leaking of the president’s tax returns (even if in the public interest) was an unlawful act and indeed the leaker has been prosecuted under the criminal law.

And generally (if not universally) speaking where there is a criminal offence there is usually a civil wrong – what lawyers call a tort.

The records of Trump were leaked by a government contractor and so, in principle, there is both blame and a claim.

But on this basis, Trump and his co-plaintiffs constructed a demand for an extortionate amount – far above what would be the level of damages for such a wrong – and brought the claim at a time when Trump was in effect the head of the defendants. Trump thereby would have effective control of both sides of the case.

The plaintiffs, however, encountered a problem. The court was not convinced it could hear a claim where one person controlled both sides. And if there is not an actual dispute between parties in disagreement, then the court would not have jurisdiction to hear the claim.

At this point the judge could have simply stuck out the suit for want of jurisdiction (though that probably would have been appealed). Instead, the judge invited the parties to make submissions on the jurisdiction point – and she also appointed independent lawyers as “friends of the court” to make submissions which the parties may selfishly not wish to make.

The deadline for those submissions was last week. But the plaintiffs did not make submissions. They pulled the case instead. The claim was dropped.

Court order with highlighted text ORDER CLOSING CASE THIS MATTER is before the Court on Plaintiffs’ Notice of Voluntary Dismissal with Prejudice (“Notice”) (DE 52). In the Notice, Plaintiffs state that they are voluntarily dismissing the instant litigation with prejudice

 

We will never now get to know how the court would determine the issue.

And if you looked at the court record – the online docket is publicly available here – that is the end of the story.

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But the story does not end there.

There is a supposed “settlement” – click here.

Title of settlement agreement

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This is not a settlement agreement which the parties put before the court to be endorsed. It is thereby not an agreement that has been recognised by the court, still less are its terms enforceable by the court before which the relevant litigation was brought.

It is instead a private agreement between parties to, among other things, bring the litigation to an end.

Such private side agreements are possible, though the parties lose any benefit of the relevant court recognising and enforcing the terms of the agreement.

The remarkable thing about the supposed settlement agreement is not that it ends the law suit – it is what the agreement purports to do as well.

In essence: a private settlement agreement is being used as a basis for legislating for a lucrative fund for the benefit of third parties and immunity from criminal prosecution for the plaintiffs.

Contracts – including settlement agreements – can be used for many complex and imaginative things, but this goes beyond the extremes for what any contract can properly be used for.

This is instead the sort of stuff that legislation is for, passed by Congress – not a settlement agreement which has not even been placed before a court for endorsement.

The settlement agreement even purports to provide for the tax status of this fund, a fund which is intended to benefit those allies of the president who have been accused of and convicted of crimes against public officials.

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We are in strange times and so nobody can say with any certainty that this slush fund will be held to be unlawful if not unconstitutional.

The scheme should, of course, be quashed on the spot.

The cynical audacity of the proposal, and the means by which it has been contrived, warrant gasps – though not of admiration.

Over at Prospect – click here – this week’s Weekly Constitutional post is about this example of sheer charlatanism.

And that post concludes by saying that if this sort of thing can be imagined by Trump and his cronies, whatever will he and his cronies try to get away with next.

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Must Prime Ministers fail? A constitutionalist perspective

16th May 2026

This was a week when we got to consider the office of Prime Minister, again.

The current occupant has somehow, through a sequence of decisions and non-decisions, made themselves a lame duck – despite a thumping majority two years ago and three years of a parliamentary terms to go. It is quite an impressive under-achievement, given the powers and privileges a Prime Minister has at their disposal.

But for a Prime Minister to be on their way out is, as this blog has stated before, not unusual. Since 1974 every single Prime Minister has come to office or left office between general elections, and recently both. The classic model of a Prime Minister coming and leaving power at a general elections has not happened in over fifty years.

What, however, is becoming distinctive is the speed with which Prime Ministers come and go. Since 2016 the churn has been quite remarkable. The long terms of Thatcher (eleven years) and Blair (ten years) now seem form another age.

Why?

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Alan Beattie of the Financial Times observes:

“If you think the UK changes PMs too often, which of the last 5 departures were mistakes? Cameron shd have stayed after losing the referendum? May after deadlock with her deal? Johnson after Partygate? Truss after meltdown? And Sunak lost an election.”

He makes a good point: circumstances and events explain each of the recent changes which, taken together, appears to be rapid churn, if not turmoil.

And Beattie links to this fine article by Robert Shrimsley which avers:

“Britain is not ungovernable. It has just been very badly governed. In particular, it has endured a decade of woefully inept leadership.”

The problem thereby is not so much with the office, but with its occupants.

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Over at his Substack Sam Freedman offers a view which mixes structural and personal points:

“Why do prime ministers keep failing?

“[One suggested reason] is that we’ve just had a really bad run of leaders who either lacked basic political skills, were temperamentally unsuited for the job, or were Liz Truss.

“[But] there are some deeper structural problems that are undoubtedly making it harder to be prime minister.

“[…] there are some uniquely British challenges with being prime minister that make it harder than necessary. The role has evolved in a typically haphazard way over the decades, without much thought as to its purpose.”

Freedman’s analysis is typically well-informed and insightful.

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My view, which I had already put together before I saw any of the above commentators, is that there is structural gap in our constitutional arrangements where the office of the Prime Minister should be.

Indeed, until the lifetimes of people still alive, the constitutional fiction was that the office of Prime Minister had no legal existence at all.

Other than with a few express statutory powers, the powers (and privileges) of the Prime Minister are still almost entirely to be inferred from the royal prerogative and from being the head of a Commons majority. Prime Ministers can remove ministers (and civil servants) from their jobs and impose whips on backbenchers, and make certain other decisions.

But unless you have an individual of exceptional charisma and/or capacity, coupled with reliable allies in other cabinet jobs and substantial backbench support, a Prime Minister is vulnerable to political downturns.

In this way, despite what pundits sometimes say otherwise, we very much have a parliamentary and not a presidential system.

And so when one faces a sequence of difficult political challenges, as the United Kingdom has had since 2016, the tendency will be for Prime Ministers to fold.

Part of it is as Beattie and Shrimsley point out: the occupants have not been up to the challenges they have faced. But the occupants also have not had firm places to stand.

The job of Prime Minister is, for the reasons detailed by Freedman, becoming more and more difficult to do. There is no particular reason to believe any successor to the current occupant will do any better job. (It is telling that many think the only viable candidate is not one of the already elected members of parliament.)

And so, as I set out, over at Prospect, there is a prime minister-shaped hole in our constitutional arrangements.

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Changing Prime Ministers mid-term and the constitution

12th May 2026

How gaining or losing a Prime Minister between general elections in the norm and not the exception

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There is perhaps a ‘classic’ view – which like many ‘classic’ views is not really true – that a Prime Minister comes in with a general election and then goes out at a General Election.

Like Disraeli and Gladstone did in Victorian days, or Attlee did between 1945 and 1951.

But since 1974 that has not happened.

Every Prime Minister of the United Kingdom since 1974 has either taken office between general elections or lost office between general elections – and recently even both.

Some would say that 1974 is not a sound starting point, as Heath sought to stay on and do a deal after the February election, and we would have to go back to 1970.

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Those who came in between general elections since 1974: Callaghan, Major, Brown, May, Johnson, Truss, Sunak.

Those who left office between general elections since 1974: Wilson, Thatcher, Blair, Cameron, May, Johnson, Truss.

Those who did both: May, Johnson, Truss – though at least May and Johnson fought general elections during their term as Prime Minister.

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Compare and contrast that with parties losing office between elections: that rarely happens, even if we go back a long time.

In 1905 the Conservative and Liberal Unionist coalition lost office to the Liberals, months before a general election. Some of the national and wartime coalitions mid-century shifted between general elections. But straight party swaps are few.

More recently even the loss of an overall majority – in the late 1970s or the early 1990s – merely meant the minority administration staggered on.

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And so we have two cycles: the party cycle and the Prime Minister cycle.

The party cycle generally accords with general elections. Invariably the party in government who lose at a general election is the party which won the one before.

The Prime Minister cycle, however, only incidentally accords with general elections. Since 1974 general elections account for only a portion of the arrivals and departures from office.

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As we seem to be about to change (yet) another Prime Minister between general elections, it is useful to remind ourselves that we (still) have very much a parliamentary rather than presidential system of government.

Even those most presidential of Prime Ministers – Thatcher and Blair – left office mid-term.

Whilst they have office some Prime Ministers can be hubristic – think Johnson or Truss – but they quickly meet with Nemesis.

The body politic regurgitated and spat them out.

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And with Starmer, the surprise would be if he actually did lose office with a general election. If so, he would be the first Labour Prime Minister since Wilson between 1964 and 1970 to win and lose office at general elections.

But it always seems to take us by surprise when a Prime Minister loses office between general elections, as if some norm has been subverted.

The true subversion would be if a Prime Minister who won a general election was able to continue to defeat at a general election.

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The silences after a threat of genocide

9 April 2026

The impotence of both constitutional law and international law

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What happens when the leader of the most powerful military nation in the world threatens to commit genocide?

Like this:

Well, it seems, from the perspectives of constitutional law and international law, that nothing happens.

Things could happen, of course.

There are two constitutional mechanism within the United States constitution for removing Donald Trump from office. Neither has been used or seem likely to be used.

There are sorts of sanctions that the international community could place on Trump. None have been used or seem likely to be used.

And so, as I set out in Prospect today (click kere):

we have a situation where perhaps the most serious threat imaginable is made and there is nothing which will be done or can be done.

One can legitimately ask what the purpose is of either constitutional law or international law if not to deal with situations like this.

Law is intended to deal with big things as well as little things.

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Some things are significant when they happen.

And some things are significant when they do not happen.

And what is perhaps far more significant than the unpleasant and extreme post of Trump is that nothing happened, at least in respect of constitutional law or international law.

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What is not happening with constitutionalism in the United States and the United Kingdom

11th March 2026

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Hello and welcome to The Empty City blog on law, policy, and lore – the new name of which is explained here.

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A look at constitutionalism (and the lack of it) in the United States and United Kingdom, with reference to a 1980s computer magazine column

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The first journalist who I knew by name was Lloyd Mangram, the writer of a monthly round-up of news for that wonderful 1980s magazine for Sinclair Spectrum users, Crash.

(Yes, I was a Speccie – less earnest than the BBC micro users, less bombastic than the Commodore 64 users, and less exotic than a Dragon 32 user.)

The Merely Mangram column was cheerfully discursive and leisurely, and it gave a better sense of what was going on (and not going on) generally in that world – especially for this then-teenage reader – than the news reports, interviews and reviews elsewhere in the computer press.

So you can imagine the devastation when I discovered one day that Lloyd Mangram did not actually exist – that this supposed author was actually a composite persona put together by the other magazine writers.

Lloyd Mangram was a fiction!

This was when I first learned to be cynical about the media.

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Nonetheless, there is merit in that sort of discursive commentary – especially about human affairs.

News reports are necessarily narrow; op-eds often promote a preconceived “angle” with motivated reasoning; explainers invariably work backwards from what topical particular point needs to be quickly explained.

But if [A] has some connection to [B], and in the meantime [C] is not happening, then a discursive approach can sometimes give more insight in what is going on, than any news report, an op-ed, or explainer.

And as Kenneth Tynan (who I think definitely existed?) says somewhere, the job of a critic is not only to say what is happening, but also to say what is not happening. This must also be true of a commentator.

Yet commenting on something which is not happening is not really what our media is geared to do, if you think about it. There is enough going on report and analyse, without setting out what is not happening.

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In respect of the United States, what is not happening explains a great deal of what is happening.

What is not happening is any overall sense of constitutionalism.

President Trump and his circle are doing the worst of things, at home and abroad. There is a general approach of cruelty and violence, from Minnesota to the Indian Ocean .

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But.

There are always Trumps. There are always Vances and Millers and Hegseths and Noems.

There are always knaves and fools, and there always those those who will serve knaves and fools.

The question is how constitutional arrangements – the division of powers, the checks and balances, the rule of law and the guarantees of certain fundamental rights – have failed and are failing to prevent what is happening.

The arrangements are there: Trump and his circle could face removal by impeachment at a stroke, and their antics could be consistently held to be unlawful.

Yet that is not happening.

What is not happening is any constitutionalist approach to restrain Trump and his circle.

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Here in the United Kingdom we have a different sort of thing which is not happening in respect of constitutional matters.

We have a supposedly left-of-centre government with a former human rights lawyer as Prime Minister – and with similar lawyers and ex-lawyers in prominent positions.

But we do not have any consistent overall view to constitutionalism and constitutional reform.

Yesterday – hurrah! – there was a vote passing the removal of hereditary peers from the House of Lords, some 115 years after such peers were allowed to remain in the legislature with what was intended to be a temporary stay.

This reform is the minimum required – and a great deal of Lords reform is undone, as is any (and arguably more important) Commons reform.

And also yesterday – boo! – there was a vote restricting trials by jury.

This change, of course, will make little or no difference to court backlogs, which to deal with requires resources at scale.

And as this blog has said many times, juries are less important for the powers that they have, than for the powers that they prevent others from having.

Again, this change is not part of any overall constitutional vision.

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Many of the problems in the United States and United Kingdom come about from what is not not being done.

And in our focus of twenty-four news and doomscrolling, we are perhaps less able to notice what is not happening.

As one Speccie computer game character would have said:

“Is there any point to which you would wish to draw my attention?”

“To the curious incident of the dog in the nighttime.”

“The dog did nothing in the night-time.”

“That was the curious incident,” remarked Sherlock Holmes.

Sherlock | The Digital Antiquarian

(Source)

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This post is also cross posted at The Empty City substack, which is run in parallel with this blog.

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The United States is a gangster state at home and a rogue state abroad

 

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