Category: Liberalism and Illiberalism

Extremism, conformity, and the problem of law

9th December 2025

How the law can (attempt to) regulate extremism, but it can really do nothing about conformism.

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Let us start with this thought-provoking passage:

When I visited Auschwitz many years ago, someone in our group said that this is what happens when extremism flourishes.

Our tour guide replied:

“This place is not explained by extremism. It is explained by conformity.”

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That exchange was in a recent post by Ian Dunt, which you can read here.

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The state can have a good go at regulating extremism.

The state can seek to define it, for definitions are often the starting point for law and policy.

In the United Kingdom we have the following official definition of extremism:

Extremism is the promotion or advancement of an ideology based on violence, hatred or intolerance, that aims to:

(1) negate or destroy the fundamental rights and freedoms of others; or

(2) undermine, overturn or replace the UK’s system of liberal parliamentary democracyand democratic rights; or

(3) intentionally create a permissive environment for others to achieve the results in (1) or (2).

The types of behaviour below are indicative of the kind of promotion or advancement which may be relevant to the definition, and are an important guide to its application. The further context below is also an essential part of the definition.

If you look at the government’s webpage, you will see that this definition even has footnotes:

A definition with its own footnotes that define terms within the definition: this is serious stuff.

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The term “extremism” is even used in statutes and statutory instruments:

And once you have a term defined officially, and used widely in legal instruments, you can do legal and policy things in respect of that term:

And so we have things like the Prevent Strategy which seeks to stop extremism becoming terrorism:

And we have Crown Prosecution Service guidance which refers to extremism:

And so on.

Extremism is a bureaucratic category and, as such, a government can have laws and policies that deal seek to deal with it.

Those laws and policies may have limited or no effect, or indeed counter-productive effects, but at least the state can have a good go at addressing extremism.

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Now let us turn from extremism to conformity – the thing which the passage quoted at the head of this post warned us against:

When I visited Auschwitz many years ago, someone in our group said that this is what happens when extremism flourishes.

Our tour guide replied:

“This place is not explained by extremism. It is explained by conformity.”

What can law and policy do about conformity?

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There is perhaps nothing the law can do to counter conformity.

This is because – maybe literally, maybe logically – the law actually requires conformity.

Maybe a law against conformity is even a contradiction-in-terms, if you think about it.

One premise of law is that, well, people comply with it.

A law which sought to counter conformity would no doubt be rather self-defeating.

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The same can be said about policy: again one point about policy is that officials and the public are supposed to abide by it.

Policy, in general terms, provides what officials and the public should and should not do in certain situations. There may be exceptions in specific circumstances, but policy provides the general thrust of public action.

And on this basis, a policy against conformity is perhaps also a contradiction-in-terms, if you think about it.

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There is probably nothing law and policy can do to counter the threat of conformity.

Indeed, once illiberals and authoritarians have public power, and so can determine law and policy, conformity will reinforce illiberalism and authoritarianism.

And, as and when illiberalism and authoritarianism slide into extremism, then conformity will reinforce that extremism.

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The problem of conformity cannot thereby be solved by law and policy.

The danger needs to be addressed by other means.

And that other means is, of course, politics.

One may not be able to have a law or a policy against conformity, but one can certainly be politically opposed to it – to campaign and vote or otherwise mobilise against extremists who want to take control of the state.

And this includes resisting the temptation to conform – that is to nod-along with what is happening.

There are always extremists.

But what gives them power is not the appeal of their extremism, but the comfort others have in conformity.

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When I visited Auschwitz many years ago, someone in our group said that this is what happens when extremism flourishes.

Our tour guide replied:

“This place is not explained by extremism. It is explained by conformity.”

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Two small liberal steps forward, against the gale of illiberalism

23rd June 2025

Why the parliamentary votes on abortion and assisted dying are welcome – and significant.

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The first thing to assert is that no law has yet been changed by the recent parliamentary votes on abortion and assisted dying . The applicable law today is as it was last week. Votes on bills as they go through parliament do not have legal effect until that bill, by regal legal magic, becomes an Act of Parliament with royal assent.

But.

The parliamentary votes on abortion and in assisted dying are significant and, from a liberal perspective (and this is a liberal legal and constitutional blog), welcome.

They are significant because they (well) signify a change – a break with the hitherto settled law and policy in these areas.

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In respect of abortion, the key provisions currently in force are in this Victorian legislation, from 1861.

Removing these provisions from the statute books does not, notwithstanding some media coverage to the contrary, legalise abortion. It will still be a criminal offence for a second person to perform an unlawful abortion.

The removal of these provisions, however, would de-criminalise self-induced abortions, where there have been some extraordinarily moving recent cases where the offence has been prosecuted – for example here:

“Though the offence itself was a serious one, and crossed the custody threshold, this was, as we said at the hearing of this appeal, a very sad case that called for compassion, not punishment. And it was one where no useful purpose was served by detaining Ms Foster in custody.

“After assessing harm and culpability, our provisional starting point was one of three years imprisonment, which was reduced to one of 18 months having regard to mitigation, and then to one of 14 months after giving Ms Foster 20 per cent credit for her plea. The length of this sentence meant it could be suspended and we considered that it should be suspended. We have already referred to the exceptionally strong mitigation. Rehabilitation had already been achieved. Ms Foster presented no risk to her family or the wider public, and there was no prospect of a repetition of this offence. By the time of the hearing before us, it was obvious that custody had had a severely detrimental effect on Ms Foster and on her family. The rehabilitation activity requirement of up to 50 days provided her with an opportunity for various interventions in relation to the offence, designed to assist her, including counselling.”

It was monstrous that the defendant in that case, and in similar cases, was ever prosecuted. But such prosecutions were (and are) always possible while the 1861 offences remained (remain) the law of the land.

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In respect of assisted dying, there are – of course – different views, and many of those opposed to its introduction are sincere and serious.

The perspective of this blog, however, is based on two points – one in principle, and one practical.

The principle is that of self-autonomy: that, as far as possible, it should be for the individual to make decisions about their own lives.

And so the preferences of someone facing an otherwise unavoidably agonising death should be accorded respect and, if possible, given effect.

There is the potential for misuse for others, but this is not itself a reason in and of itself to deny the preferences of someone facing an otherwise unavoidably agonising death to end their own life on their own terms.

It is instead an argument for preventing those abuses, and not for denying the choice to those who want to make that decision for themselves.

The practical point – which often seems missed in the discussion about the proposals – is the that the status quo is itself unsatisfactory, and based on the uncertain but generally widening discretion policy of prosectors on whether to prosecute. At the moment assisted dying to can and does escape prosecution but at the cost of unimaginable legal anxiety to those concerned.

If this proposal – set out in this private members bill which, as Ian Dunt explains, has been impressively piloted through the Commons by Kim Leadbetter MP – is defeated in the House of Lords, as some opposed campaigners are now urging, then this dire status quo will continue – and without any of the safeguards in the bill.

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Given the force of the illiberal winds blowing through the United Kingdom and the United States, and elsewhere, the sensible decriminalising of people facing the horrible decisions and actions set out above, is a boon.

One may have moral views against abortion and assisted dying, but the intervention of the criminal law in these situations often makes dreadful personal situations far worse.

Neither change is yet on the statute book – and there are those who will work hard to make sure they do not get enacted.

But for the House of Commons to even pass such measures in draft legislation is an important moment.

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The significance of the Wisconsin court election result

2nd April 2025

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Some of President Carter’s judges can still judge, 44 years later – and so we can see how long Trump’s new nominees will be on the bench

New year’s eve, 2024

The former US President Jimmy Carter, who has just died, left office in January 1981 – just under 44 years ago.

Yet one of his many bench nominees was still actively serving as a federal judge as recently as 2021:

And that list also indicates that about 29 of those judges – while not on active service – have the semi-retired “senior status” and so can still serve as judges if required.

This shows the significant lingering power of every US President on the shape of the judiciary.

A 100 year-old president former president has died who left office over 40 years ago, and yet his appointments can still decide cases.

Bringing this around to today: the newly re-elected Donald Trump and the Republican Senate will be appointing a raft of young conservative judges to the judicial benches, in addition to those which were appointed during his first term.

And some of these will still be judging (or able to judge) in 40 or 50 years – long after many of you reading this post may be here.

The lingering effect of the two Trumpite moments will last for political generations. Some appointed judges may see out ten or more presidential terms and still be judging.

And judicial time limits are now more unlikely than ever: Trump and the Republican senators have no interest whatsoever in limiting the enduring power of their nominees. And presumably as and when (or if) the Democrats ever regain power, they will have no interest in limiting the terms of their appointees.

This is a practical effect of how what some say (or hope) may only be short-term political surges can have consequences that will last decades.

(See also: Brexit.)

We are not dealing only with the politics of the here and now, but about the law and government of the hereafter.

Perhaps things will one day get better for liberals and progressives.

Perhaps.

But it is going to be a long haul.

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Happy new year to the readers of this blog.

Thank you for your ongoing support.

There is going to be a lot to write about in the new year – and I am also going to explore the law and policy of AI, following my Candlemas story.

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The illiberalism yet to come: two things not to do, and one thing to do – suggestions on how to avoid mental and emotional exhaustion

18th November 2024

The new Republican presidency-congress in the United States as well as developments in other countries mean that in addition to the illiberalism we have had so far, there is more – perhaps worse – to come.

So how should liberals respond?

Here are three suggestions, humbly put forward.

1. Do not respond, if you can, to catastrophism. You are going to think how bad things can be, and will project this on to the other side. You will then react to what your mind has conjured up. Even if those projections are plausible, this will exhaust you quickly. You will have little energy or focus left for what they do come up with.

2. Do not respond, if you can, to what the illiberals say they will do. They will goad you and frighten you, as they enjoy “owning the libs”. They like the sound it makes, the reactions they can get. Again, even if these threats are plausible, reacting to each bare threat will exhaust you quickly. You will again have little energy or focus left for what they do come up with.

3. Respond, if you can, to what they actually do – not what you fear they will do, or even what they say they will do. What they actually will do will be bad enough, and will need your energy and focus. The illiberals will hope – and expect – that all the noise and fears under (1) and (2) will mean that by the time they do put measures forward, they will have little opposition.

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As Margo Channing in All About Eve said, we are are in for a bumpy ride.

We don’t need to make it even bumpier for ourselves.

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The shapes of things to come – some thoughts and speculations on the possibilities of what can happen next

8th November 2024

The working assumption of many in reaction to the re-election of Trump as President is that he will serve a full term.

And that is the most likely outcome, as that is what presidents tend to do once elected: they serve out their term.

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But there are other possible outcomes.

Some outcomes are morbid, and they are possibilities for any president, especially for one advanced in years.

And there is the possibility he may step down mid-term – or be replaced mid-term.

If Trump stands down mid-term, the new President Vance could pardon him for all and any federal crimes (though not state crimes). This would meet one of Trump’s presumed objectives for having re-run for President.

And if the timing of the replacement is done just right then a President Vance has the prospect of up to (but not quite) ten years in office: here the Twenty-second amendment to the US constitution provides:

“Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. […]”

If the replacement is done on the day after the second anniversary of the start of the term, then there would seem nothing to prevent a President Vance from then running for election and then re-election as President.

[Edit – in other terms: (2 years minus one day) plus 4 years plus 4 years.]

It can also be noted that in a way Trump has done his job for his backers in getting re-elected and, accordingly, there is nothing more he can personally do for them which another friendly occupant of the Oval Office cannot also do. If their objective is dominance over the medium- to long-term then they will be already thinking about the approach to the 2028 election.

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And if there are doubts (real or otherwise) about the cognitive alertness of President Trump there is also the Twenty-fifth Amendment, where a President can be effectively removed against their will, on declaration of the (well) Vice-President and others.

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On the other hand, a President Trump serving a full term may suit his backers just fine.

Trump is not a President to personally drive legislation through Congress – he is not a Lyndon Johnson or a Franklin Roosevelt.

But with a Republican Senate he does not need to do so: they can drive through the legislation themselves, subject to the final composition of the House of Representatives.

What a lazy president enables is for those around him to dominate the judicial nominations and discretionary powers.

So we can expect a raft of conservative nominations for the judicial benches – and for Justices Clarence Thomas and Samuel Alito to stand down and be replaced by 40 or 50 year-old strong conservatives, nominated by Trump and approved by the Senate. That will secure the Supreme Court for the conservatives for at least another twenty years, if not more.

And we can expect a huge amount of Executive Orders and such like, which in turn will be upheld by conservative judges – for who needs congressional legislation when you can have the combination of executive rule-making and nod-along judges?

Those around Trump will not be the inexperienced incoming staffers of the 2017 presidency, but people who know what to do and how to do it, many with hard experience of the first Trump presidency.

They will know what to do so as to fit things around a golf-playing president.

Trump himself may not be busy, but those around him will be.

Brace, brace.

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A postcard from the day of an election – capturing a political-constitutional moment

5th November 2024

Today is the day of the American presidential election.

Sooner or later there should be a result – even if, like four years ago, there is drama (or worse) all the way into the new year. And when there is some sort of result then there will be those who will explain why that was always the most likely result. Such is the nature of punditry.

But today, all is uncertain.

On the face of it, it would seem that Harris should win. Trump does not seem stronger than he did four years ago – or two years ago when his endorsed candidates did badly. He is also a more divisive figure than he was when he won eight years ago, and he is against a less divisive candidate.

But, we are not in times where such a rational view has much purchase. We are in a period of populism and hyper-partisanship and disinformation, of joyful cruelty and illiberal frenzy. One can too easily imagine Trump winning. Less likely things have happened in the United States and around the world in recent years.

And if so, we will have an extraordinary situation of a president with criminal sanctions and facing criminal trials using the might of his office to reduce his exposure to any proceedings.

And we will have a president who boasts of wanting to also use the might of his office against political enemies, both personal and general.

The only liberal hope would be that, again, he is too lazy to follow-through on his threats, and that the swings he takes will be on the golf course, and not from the Oval Office.

In the days, weeks and months to come, things may be clearer – though even that cannot be said with absolute certainty – but as of today, things are unclear and they are worrying.

So it seemed to be a moment worth recording, using this blogpost as a postcard.

And to adapt the wording of a postcard: I wish we weren’t here.

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Seven changes for a better constitution? Some interesting proposals from some good people.

24th June 2024

In the Times today there is a letter published from various good sorts putting forward seven practical and easy-to-make steps for a better constitution.

One of the signatories, David Anderson, helpfully posted the letter on Twitter:

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Of course, changes to form and structure can only take us so far. The biggest problem of recent years has been an underlying lack of constitutionalism from government ministers (cheered and clapped by their political supporters). And until attitudes change, then rules will always be gamed or ignored and discretions abused.

But, there has to be a start somewhere to repair the damage, and these are interesting proposals.

The suggestions appear to be:

  • independent enforcement of a new ministerial code;

  • establishing new systems for managing conflicts of interest;
  • ditto, for lobbying;
  • improving regulation of post-government employment;
  • ensuring appointments to the Lords are only made on merit;
  • ensuring other public appointments are rigorous and transparent; and

  • strengthening the independence of the honours system, including by ending prime ministerial patronage.

The worthies aver that legislation is not necessary for most of these changes but a short bill would create the necessary powers and embed the independence of the ethics and integrity system.

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Some may say that these proposals are a little “apple pie” – but they would be a move in the right direction, the least that can be done.

Words like “ensuring” and “strengthening” are easy to type – and they are almost as easy to put at the start of a sterling bullet point.

But what is the actual check on misuse? Who in practice will have the power and authority to say “No” to a trespass by a minister of the crown (or by a former minister of the crown)?

The robustness of any regulatory system is not so much in the rules being themselves commendable, but in the rigorous enforcement of those rules and in the ready and realistic availability of sanctions for breach.

In a word: there needs to be tension.

And in our constitutional arrangements, as they stand, only parliament and the courts – rather than third party agencies – have the strength and the legitimacy to check the executive on an ongoing basis, and so for each of these seven laudable aims, one question is how they can be enforced against the government’s will by other strong and permanent elements of the state.

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The strange omission in the Conservative manifesto: why is there no commitment to repeal the Human Rights Act?

12th June 2024

As each party manifesto is published online, and for my own easy amusement, I like to search the pdf for words like “enshrine” and “clear”.

And after that easy amusement, I look for more serious things.

Yesterday the Conservative manifesto was published.

(Many “clears” but disappointingly only one “enshrine”.)

What were the Conservatives were promising (threatening) this time for the Human Rights Act?

 

Doing something to this Act has been a mainstay of every Conservative general election manifesto for as long as I can remember.

But the search return was…

…0/0.

I am a clumsy typist and so I thought: a typo. Let me try again.

And it was still a nil return.

Something must be up with the search function, I thought.

And so I tried “ECHR”.

I even typed out in full the “European Convention on Human Rights” and the “European Court of Human Rights”.

Nil, nil.

How odd.

Could it be that the manifesto actually did not threaten the Act or the Convention?

Well.

A closer look revealed one fairly oblique mention:

Of course, the European Court of Human Rights is not meaningfully a foreign court: it has British judges, British lawyers can appear, British residents can petition the court or appeal cases there, and its caselaw can be relied on in our domestic courts. Foreign law usually is a matter of expert evidence, but Strasbourg case law is part of our own jurisprudence.

It is an international court, of which we are part, rather than a foreign court.

But that is by-the-by.

What is significant is not this sort-of commitment, but the lack of any other promises (or threats).

It is an astonishing, unexpected absence for a Conservative manifesto – perhaps the manifesto equivalent to leaving a D-Day commemoration early.

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Over on Twitter, Adam Wagner noticed the same:

Of course, it must be noted that government has recently been disapplying the Act on a statute-by-statute basis, rather than making any full frontal attack.

But even taking that point at its highest, one would still expect an explicit manifesto commitment just for the claps and cheers of political and media supporters.

And this is a governing party that needs all the claps and cheers it can get.

It is a remarkable omission.

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And one suspects it is an accidental omission, for the governing party has little to gain by leaving it out, and something to gain electorally (or at least hold on to) by leaving it in.

If so, the possible significance of the omission is that the Conservative leadership, having got bored with the pretence that the Act will ever be repealed or substantially amended, simply are not thinking about it any more.

Their minds have moved on to other “red meat” for their more illiberal supporters.

But what it also means is that, in the highly unlikely event of the Conservatives staying in government after 4 July 2024, there is no manifesto commitment they can rely on in forcing any changes to the Act through the House of Lords.

What that in turn means is that the Human Rights Act will now be safe for the lifetime of the next parliament, whatever happens at the general election.

And that itself is quite a thing.

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Why Raab’s frontal attack on the Human Rights Act failed, and why the Home Office attack on human rights law is succeeding

25th April 2023

One big error by the former Lord Chancellor Dominic Raab was how he went about dealing with human rights law.

Raab insisted on outright repeal of the Human Rights Act 1998, and nothing else.

As this blog has previously averred, the Act was the Moby Dick to his Captain Ahab.

The Act had to go.

And this approach failed, even from an illiberal perspective.

For the Human Rights Act 1998 is still there, and Raab is not.

A more effective approach from an illiberal perspective is not the full repeal of the Act, but to slowly bit-by-bit reduce its effect and restrict its scope.

Take this simple clause 1(5) from the Illegal Migration Bill:

That is all that needs to be done.

For the Human Rights Act 1998 is only a statute, and what one statute provides another can take away.

The Act does not, from an illiberal perspective, need to be repealed: it can instead be subjected to dozens of similar “notwithstanding” clauses, in new legislation and amending old legislation.

There is no point in saying: don’t tell the government this!

Those in the government already know – that is why the Home Office lawyers have put that clause in the Bill.

They do not need Raab’s cavalry charge of full repeal: they can be more effective operating on the flanks, picking off targets as they choose.

Of course, if the government goes too far there may, perhaps, be an adverse adjudication by the European Court of Human Rights on such legislation.

But that would be a cost of government business, sometime down the road, and not something to prevent putting in such clauses now.

And the pushback against such clauses will be harder than defending an entire Act from repeal.

The government can and will be more savvy in its illiberalism.

And this is far more concerning, from a liberal perspective, than Raab’s futile whale-hunt.

The Human Rights Act 1998 may now be safe from repeal, but the reach of human rights law in primary legislation is certainly not safe from attack.

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