Category: United Kingdom Law and Policy

Yes, an incoming illiberal and radical UK government would have absolute constitutional power

27th August 2025

Only good fortune has prevented previous governments from misusing our constitutional arrangements more than they did

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The constitution of the United Kingdom provides for two – perhaps three – super-powers for governments with a firm majority in the House of Commons.

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The first super-power is the doctrine of parliamentary supremacy.

(Some call this ‘parliamentary sovereignty’ though this blog tends to avoid that phrase, as parliament is only sovereign in its capacity to pass primary legislation, and not in other ways. Parliamentary resolutions and other motions have no real outside force, and secondary legislation can be quashed by courts.)

Under this doctrine an Act of Parliament – that is, a Bill with Royal Assent and which is, when applicable, passed in accordance with the Parliament Acts – cannot be gainsaid by anyone anywhere.

When the United Kingdom was in the European Union a court could (and did) strike down an Act of Parliament, though the polite fiction was that was because the European Communities Act had priority over legislation to the contrary. But since Brexit, that is no longer exception to the doctrine.

A government with a firm majority in the House of Commons can (even if with a year’s delay under the Parliament Acts) force through the House of Lords any legislation it wants.

Yes, there are conventions – but conventions can be freely discarded and if, say, a Reform Party manifesto was explicit in what it wanted to do, the Salisbury Convention, for example, would not even apply.

Under the doctrine of Parliamentary Supremacy, a Reform Party government could do exactly what it wanted with primary legislation.

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The second super-power is the so-called Royal Prerogative.

This means the Prime Minister of the day can exercise certain powers with legal effect, free from any statutory basis.

A Prime Minister can sack ministers (and perhaps others) and make or break treaties and grant pardons and so on,

The main limits to this power are that the Royal Prerogative cannot be extended to new areas and that if there is a clash with an Act of Parliament then the legislation has priority.

There are also other legal limits such that it needs to be exercised “rationally” and fairly in certain circumstances, and it cannot be used to make fundamental changes in the law – but in practice the courts are very deferent to the Prime Minister.

In theory this is a power of the Crown, but in constitutional practice the power is exercised by the government of the day.

And these powers of the Royal Prerogative will be at the disposal of a Reform Party government.

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The possibly third constitutional super-power is the sheer range and wealth of discretionary powers of the government not under the Royal Prerogative but already existing under perhaps thousands of legislative provisions.

Some of these provisions under Acts of Parliament even allow ministers to change the law by ministerial discretion, as well as to issue statutory instruments and other instruments (such as statutory guidance) with legal effect.

Every successive government has added more of these provisions, even if they complained about them in opposition.

And it would be open to a government under the first constitutional super-power – the doctrine of parliamentary supremacy – to add even more of these powers

One suspects various “think-tanks” are already collating the discretionary powers that already exist, ready to arm – DOGE-style – an incoming radical and illiberal government.

Such an incoming government would not need to break the law – for the law already will provide almost all the powers such a government could want.

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That no previous government has used these super-powers to the hilt is because of one thing alone.

Luck.

The governments of Boris Johnson and Elizabeth Truss, for example, were too incompetent to see through many of the radical notions of some of their advisors and cheerleaders.

Fortunately Johnson’s and Truss’s hubris met a constitutional nemesis, and the body politic spat them out of office.

But we will not always be so lucky.

As with the passage quoted on this blog a few days ago about crushes in football stadiums, those nominally in charge will not always save us.

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The potential for abuse by a government with a firm majority has long been spotted by observers.

In 1929 the then Lord Chief Justice Lord Hewart published The New Despotism, warning of the implications of the doctrine of parliamentary supremacy.

 

In the 1970s the Conservative politician Lord Hailsham warned of an elective dictatorship – though he did nothing as Lord Chancellor in the 1980s to counter this threat.

We cannot say we have not been warned.

This has been a possible danger since the modern doctrine of parliamentary supremacy became constitutional conventional wisdom.

(Even the main theoretical proponent of parliamentary supremacy – A. V. Dicey – wanted to have referendums built into the legislative process so as to stop governments doing as they wished with primary legislation – though in his case his fear was Irish Home Rule.)

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So a competent, prepared and briefed incoming illiberal and radical government – either under the Reform Party or otherwise – would have nothing to stop them.

The only limits would be (currently) theoretical ones.

Perhaps the King could refuse Royal Assent – though no monarch has done this for three hundred years.

Perhaps the courts could impugn the doctrine of parliamentary supremacy – though one has to go back perhaps to the early 1600s to have authority for this now heretical view.

But that would be it.

The House of Lords would only have a power of delay.

Nothing would check or balance such an incoming government, short of the King or the courts doing something drastic, which in turn would no doubt lead to a constitutional crisis.

The gatekeepers and the “good chaps” and their counsel and practice of constitutional self-restraint would count for nothing, if any such people would be around at all.

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Those now in government and parliament know all this (or should know all this).

If an illiberal radical government obtains a firm majority at the next general election, and is competent, then as the law currently stands nothing would hamper them in what they want to do and much would help them.

But those now in government and parliament are doing nothing to limit the scope of such potential damage.

They know this could happen (or should know), yet they are doing nothing to stop it in advance.

And so all we have to rely on is one thing.

Luck.

Brace, brace.

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What to know about court orders, injunctions, and super-injunctions

21st July 2025

A general introduction to the coercive powers of the court to order things, and what can be done with those powers

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Imagine the polity of the United Kingdom as so many machines.

There is the machine of the Crown, and – from a legal perspective – what comes out are various legal instruments enforceable and/or recognised at law: proclamations, decrees, royal charters, royal warrants, privy council regulations, and so on.

Each instrument following a certain form and even ceremony, with certain ‘abracadabra’ magical wording, and the document exists at law.

And because that document is capable of making things happen, it is called an instrument.

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There is then the machine of Parliament, and – again from a legal perspective, what comes out are Acts of Parliament.

In a technical way these are a subset of documents from the Crown machine, as an Act of Parliament is not enforceable and/or recognised at law unless it has Royal Assent. It is in this way just another legal instrument signed by the Crown.

But Acts of Parliament can have general, even universal effect, and so are in a category of their own.

Note that other things done by Parliament – such as passing motions and resolutions – do not normally have effect outside of the Palace of Westminster (if at all).

And so when one talks of the sovereignty (or more correctly the supremacy) of Parliament, one usually means the sovereignty (or supremacy) of Parliamentary legislation.

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And then there is the judiciary machine.

To an onlooker (and indeed many lawyers) the outputs of the judiciary machine are the judgments and sentencing remarks. And indeed the reports of judgments and remarks are central to understanding laws and legal systems around the world.

But.

The main outputs of the judiciary machine are not judgments or sentencing remarks: they are at one or two steps removed.

The main outputs of the judiciary machine are Orders.

(There are other judicial outputs such as writs and summons and warrants.)

It is the Orders that have legal effect, that are enforceable and/or recognised at law.

Judgments and sentencing remarks are all very interesting and informative, but it is the Order that is the thing.

A judgment should explain why the court made one Order instead of another, why a case was disposed of in one way rather than another.

As such, judgments can be integral to understand what has gone with a case, but it is still the resultant Order that is the thing.

Orders are thereby for courts, what Acts are for Parliament, and charters and so on are for the Crown.

They are the things which come out of the judiciary machine, at least from a legal perspective.

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Orders can take many forms, but the form of Order which comes up most often in the news is the injunction.

An injunction is – very generally – a court Order which tells a person to do a thing or not do a thing, on pain of it being punishable as a contempt of court.

The classic historical-legal theory is that an injunction is there so as to ensure a person acts in accordance with their conscience: to do or not do a thing they ought or ought not to do.

Injunctions usually are either ‘final’ or ‘interim’/’temporary’. The latter are often used by courts to ‘hold the ring’ until a legal matter can be finally disposed of by the court: to keep things in a virtual legal state of suspended animation for the time being.

The normal position is that an injunction can be imposed on a party to litigation.

Here [A] is suing [B] for say breach of contract or an intellectual property infringement, and [A] wants to stop [B] for causing any further damage until the trial.

(Sometimes it may turn out that [B] has been injuncted when [A]’s case does not succeed at trial, and in those situations [A] must make good the damage and costs caused to [B] complying with the injunction. As such injunctions can be double-edged legal weapons. In legal practice, injunctions are the sort of things you ‘don’t try at home’ and should be left to the professionals. Injunctions can cut in unexpected and painful ways.)

Sometimes a party will want a permanent, final injunction – but generally (at least in England) injunctions are a means to an end and the final remedy at court will usually be damages.

A party breaching the injunction faces punishment (and there is a legal debate whether such punishments are criminal as such) which can include imprisonment.

A person guilty of contempt will then be expected – to use a quite lovely legal word – to ‘purge’ their contempt.

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Injunctions, however, may not only be against a party to legal case.

They can also be granted against third parties.

In England such injunctions are not at all unusual – and the courts have developed all sorts of freezing orders and search orders where third parties caught up in a situation can be obliged to comply with court orders.

Sometimes such injunctions can be made against persons unknown (for example trespassers) or even ‘contra mundum’ (against the world).

Obviously there is practical difficulty in showing a person is aware of such an order, and the normal position is that a person is not bound by an Order unless they have (or should be expected to have) notice of the Order.

That is why injunction notices are tied to fences or emailed to legal departments of newspapers, and so on.

The injunction in the recent Afghan case was applied by the government to be ‘contra mundum’ order:

As a subsequent judgment in the same case described:

If a person has notice of a contra mundum notice then they are as bound by it as any party to the litigation.

An affected third party can have protections built in to the Order – and can also apply to the court to have the Order amended or discharged. But in practical terms the third party has little choice but to comply.

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There is a further way to super-charge an injunction, by giving it is a special super power (though this is rare for contra mundum injunctions).

A court can turn an injunction into…

…a super-injunction.

In a super-injunction it is a term of the Order that the existence of the Order itself cannot be disclosed.

In the recent Afghan data breach case, there was a super-injunction. A judge in the case described it as follows:

Originally the super-injunction in that case was not published with the raft of documents released last week.

But following a request from this blog, the Order was published.

The “super” element of the Order is at paragraphs 4(b) and (c):

A non “super” version would have 4(a) and no mention of 4(b) in the final sub-paragraph.

If you go to front page of that Order you will see the penal notice, to warn those of the dire consequences of any breach:

Such an Order is thereby not to be taken lightly, and they are not taken lightly by any responsible person.

Super-injunctions were briefly common about 2010 as a means of protecting the claimant when they were suing for the then new tort of misuse of private information, but media and political controversy meant that the courts moved away from granting them.

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The Afghan data breach case injunction was both a contra mundum injunction *and* a super-injunction.

As such it was an exotic legal creature, the sort which are sometimes speculated about, but rarely spotted in reality.

But even if they are exceptional the components are straightforward:

(1) it was an interim injunction that

(2) was addressed to anyone who had notice of it which

(3) had as one of its terms that the injunction should not be revealed beyond those who had notice of it.

Such injunctions can exist – and some would say that they have their place in exceptional situations.

But one question is whether it was appropriately granted in this situation – and, if so, whether its terms should have been discharged or varied sooner.

And another question is whether in this situation such an injunction stymied legitimate public knowledge and political/media scrutiny of the government by parliament.

For sometimes even the judiciary machine fails to function properly.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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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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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Thinking about a revolution

5th March 2025

Some things are changing rather fundamentally and the way we think should perhaps change too

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There is that scene in Monty Python’s Quest for the Holy Grail where an armed knight crashes and easily wastes a wedding party.

 

And of course, this armed knight is able to cause so much damage at a wedding party – nobody would expect this to happen and so nobody would think to to stop him.

He shows that it is really not very difficult to move fast and break things.

The surviving gate guard outside just looks on bemused at this, and he says, “hey”.

This is pretty much what many are also doing as they watch what is happening in the United States.

They see what is happening, and their response is also a bemused “hey”.

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Students on university history courses often study historiography – the study of historians and how they write about history.

Sometimes this study of historiography includes a look at how different historians have used certain words and concepts, such as ‘revolution’.

And those students then find that such words and concepts have been used at different times and in different ways.

So, for example, students looking at ‘revolution’ may come across the so-called ‘diplomatic revolution’ of 1756.

In early 2025 we seem to be having a similar ‘diplomatic revolution’ – in real time, and this feels odd as in the United Kingdom we have not really had one for a long while.

When I mentioned this on social media, this was one insightful response:

The United States’ current deliberate alienation (and worse) of its long-term allies is a similarly fundamental – and, no doubt, similarly consequential – shift.

And although one should hesitate before saying anything as pointed as describing president Trump and Vice-President as Russian assets, their conduct is indistinguishable from them being so.

Everything they are doing appears to increase Russian power and to limit United States power.

There seems to be no other explanatory model that explains as much.

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This is not to say that they are necessarily actively corrupt: one is reminded of an old joke-poem about Fleet Street journalism:

You cannot hope
to bribe or twist,
thank God! the
British journalist.

But, seeing what
the man will do
unbribed, there’s
no occasion to.

In addition to any actual corruption, there seems to be also an ideological commitment to promote and protect Russia at the expense of everyone else.

Perhaps the ghost of Stalin is now kicking itself – had he only described his regime as Russian nationalist as opposed to communist, he may not have been bothered by American cold war policy and 1950s McCarthyism and so on.

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One thing about a (genuine) revolution, like a (genuine) crisis, is that they are unpredictable in their course and in their outcome.

And another thing about a (genuine) revolution is that it often requires there to be new concepts and new words, so as to describe things which are new.

Imagine living through the French Revolution without the benefit of hindsight: from the storming of the Bastille and the ending of the monarchy to the Terror, and from the Terror to the rise of Bonapartism, and from Bonapartism to a massive war and imperial conquest, and from a massive war and imperial conquest to a total defeat and the restoration of the monarchy.

And at each stage, nobody knowing what will happen and everything always confused and foggy and (frankly) terrifying.

Events unfold into things which were not only unexpected but also unprecedented.

Decades later, of course, the frenzy settles down to calm historical narratives.

But at the time, things did not seem like that.

As somebody once said of “realistic” war films, the only realistic war film would have bullets spraying out randomly from the cinema screen.

The same can be said about reading about social and political upheavals.

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Revolutions are thereby not often fun – despite (or because of) the enthusiasm of self-appointed revolutionaries.

Wise conservative once knew this. There is a good case that modern conservatism (at least in Europe) came out from the reaction to the French Revolution – with its philosophy articulated by Edmund Burke and its statecraft practiced by Metternich.

Constitutional arrangements and the international order were regarded as fragile things – to be, well, conserved.

(Hence, conservatism.)

Yes, one could (to be anarchistic) move fast and break things. But that was neither clever nor wise. One can imagine the looks at the faces of Burke and Metternich and others at the antics of Elon Musk and DOGE

And the reason and the motive to oppose liberals, progressives and radicals was for Burke and Metternich that in their demands for reform and progress the liberals, progressives and radicals risked the fragility of constitutional arrangements and the international order.

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One of the most remarkable features of current “conservatism” is that that it turns this conservatism of Burke and Metternich on its head.

It is almost as if the word and concept of conservatism has had its own revolution, and it has now become the very thing it once opposed.

The only common quality is that both old-style and new conservatism grasp the fragility of constitutional arrangements and the international order.

But instead of the caution of old-style conservatives, the new conservatives see that very fragility as an opportunity to trash and do damage.

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And so all sorts of things are now being unleashed.

Here are a couple of literary examples of horrors being unleashed in their giddy destructive excitement.

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In the words of Yeats:

“Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

The best lack all conviction, while the worst

Are full of passionate intensity.”

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Or in the words of C. S. Lewis:

“But such people! […] bull-headed men; spirits of evil trees and poisonous plants; and other creatures whom I won’t describe because if I did the grown-ups would probably not let you read this book—Cruels and Hags and Incubuses, Wraiths, Horrors, Efreets, Sprites, Orknies, Wooses, and Ettins. In fact here were all those who were on the Witch’s side […]”

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Alas, unlike the original literary texts from which those quotes are extracted, we are perhaps unlikely to be saved by a second coming, or even a first one.

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What has been done in the last few weeks by Trump and his cronies cannot – at least on a conceptual level – be undone.

They have shown just how fragile are their constitutional arrangements and the international order.

That cannot be un-invented.

Other countries would now be prudent to regulate their affairs so as to minimise or eliminate their dependency on the United States – it is no longer a question of waiting out until the next United States elections.

And other political systems would be wise to limit what can be done within their own constitutions by executive order, and to strengthen the roles of the legislature and the judiciary (and also of internal independent legal advice within government).

What is happening in the United States can happen elsewhere.

It can happen here.

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Any political culture has a stockpile of political anecdotes, precedents and other antecedents, examples and illustrations, fables and proverbs.

“Peel did this” and “Roosevelt did that” and “This is just like the 1930s”.

There is nothing wrong with this – indeed it is an inevitable part of any political culture, essentially it is a shared set of memes and gifs that help us make sense of what is going on around us.

The problem is that old categories and concepts often do not match the novelty of what is now unfolding.

We many need to think about things in a new way – so as to work out to defeat what is unwelcome.

We may need to have a revolution in our own minds.

And not just go “hey” instead.

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(And to my history tutors from the early 1990s, I am really sorry this historiography essay is thirty-five years too late.)

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The fog of lawlessness: what we can see – and what we cannot see – in the current confusions in the United States

25th February 2025
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“l’histoire […] [est] après tout qu’un ramas de tracasseries qu’on fait aux morts.”

[“History […] [is] an annoying trick we play upon the dead.”]

~ Voltaire

(See here regarding the translation.)

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A war or a revolution or a riot often makes little sense to contemporaries. There is a metaphorical fog, and there is confusion. Information is incomplete or unreliable. There is anxiety and excitement. Nobody really knows what is going on.

It is only in the later clear prose of a good historian, or the elegant prose of a confident judge, that the events seem to take some form of order: that what was messy and complex becomes a neat linear narrative, with reasoned conclusions based on tested evidence.

But it is not like that for those at the time.

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What is actually happening currently in the United States is unclear.

There is a metaphorical fog, and there is actual confusion. Information is incomplete or unreliable. There is anxiety and excitement. Nobody really knows what is going on.

Not even those instigating the chaos know what is going on: they are too busy moving fast and breaking (and taking) things.

They may have some vague ideas about what they will do next, but one suspects what they will do next will come down to opportunism and cunning more than anything more concrete.

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But in this fog there are certain things which can be made out.

For example, there are individuals who are insisting on being constitutionalist – despite the intense pressure and open threats to be otherwise.

There are the federal prosecutors who refused to apply for the prosecution of a politician to be dismissed:

There is the federal judge who appointed an independent lawyer to assist the court when nobbled prosecutors were found to apply for that dismissal:

There is the governor who said “see you in court” in the face of a president announcing that they were the federal law:

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“See you in court” is a phrase that conveys the essence of the rule of law: that there is a forum where assertions of power can be tested for their legality.

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And then there are things which are not being said.

Here is what seems to be the sound of constitutional silence:

Some are suggesting that the lawyers here are acting in bad faith, and that they do indeed know whether DOGE has an administrator.

Perhaps.

But what is more likely – and what would be far more significant – is that the lawyers do not actually know if DOGE has an administrator.

And here the word “know” is crucial – do they have knowledge?

They may have an understanding, a guess – or they may have heard somebody say something.

But if they do not know, they do not know.

And they are not going to mislead the court otherwise.

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Indeed, whether DOGE actually exists is becoming more of a question for a theologian or a philosopher than for a mere legal commentator.

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Perhaps soon all this will settle down, and the fog and confusion will clear, and we will see what has really happened.

The problem is that in fog and confusion a lot of things can happen which we cannot now know and maybe will never know.

It takes time to “see you in court” – and one does not know what one cannot see before one eventually gets to court.

By the time a court intervenes – and the adults stop the infantile antics – a lot of damage can be done – and certainly a lot of data and other material can be taken.

The law is sometimes not well placed to deal with what happens under the fog of war.

***

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The president who believes himself a king

23rd February 2025

A telling joke told by the president of the United States

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During the last week the president of the United States compared himself to a king.

Of course, it was intended to be a joke – not in the sense of being funny, but in the sense of saying something without any adverse consequences.

But what struck me when he said it is that this is exactly sees power: that all power – executive, legislative, judicial – flows from him, and is ultimately exercisable by him. He wants to block laws and ignore court orders at will.

As such he does see himself as an absolute ruler.

In the United Kingdom – or at least in England – the theory is that while all power flows from the Crown, it is institutionalised so that the legislature legislates (as the “Crown-in-Parliament”) and the courts adjudicate (including in the Royal Courts of Justice).

But.

The “founding fathers” who devised the United States constitution rejected this approach – for them, the executive, legislature, judiciary each derived their powers separately from the constitution document itself – and not from the executive.

Trump’s approach is a flat contradiction to this codified constitutional arrangement.

I have written more about this over at Prospect – please click and read here.

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Comments Policy

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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From constitutional drama to constitutional crisis?

1st February 2025

When do constitutional problems become incapable of constitutional solutions?

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What is a “constitutional crisis”?

There has certainly been a great deal of constitutional drama in recent years – in the United Kingdom, the United States, and elsewhere.

But some of this drama somehow resolved itself.

In the United Kingdom, for example, the breathless threats and press briefings that the government was to do unlawful things in respect of Brexit in the end came to very little, though some (impotent) legislation was passed.

The United Kingdom supreme court in the Miller cases and parliament, by means of the Benn Act, put the government back into its constitutional box – and the once intense political-media frenzy over the Northern Irish protocol came to a whimpering end with the Windsor framework.

But sometimes constitutional dramas do spill into constitutional crises – political tensions harden into political contradictions, and these in turn can result in bloody violence.

On the islands of Britain and Ireland this has happened at least four times since the 1620s: the civil wars and political violence of the 1630s and the 1640s; the succession and religious conflicts from 1685 to 1746; the Irish war of independence and the Irish civil war; and most recently, the Troubles.

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The execution of Charles I

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Constitutional crises are serious political conflicts where constitutional means are unable to resolve the conflict, and the ultimate outcome of the conflict then becomes uncertain.

Often the political actors involved in the crisis will resort to violence – or be prepared to do so.

At such times it may not matter that a constitution is codified or not. For what has failed is not the form of the constitution, but its substance. The real failure is that of constitutionalism.

What then is constitutionalism? It has many definitions, but one approach is to regard it as the acceptance that there political rules and principles that should apply, regardless of partisan or personal advantage.

In other words that there are rules of the game.

What has happened in the United States over the last few days looks like a determined and comprehensive attack on various political institutions, by and on behalf of the newly re-elected President Trump.

As there are well-grounded fears that neither the federal judicial benches nor Congress will check and balance this attack, then there are the makings of a genuine constitutional crisis.

And the ultimate cause of this is not so much the failure of their codified constitution, but a deeper and wider failure of constitutionalism – including but not limited to the licence given by the United States supreme court to the president to do unlawful acts, and the failure of the Senate to discharge its constitutional obligation to convict Trump on impeachment after the attempted insurrection of 2021.

From such things, other things have now followed.

Brace, brace.

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Solving the puzzle of why the case of Prince Harry and Lord Watson against News Group Newspapers came to its sudden end

25th January 2025
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A third and final post about the ‘Lettuce before Action’ of Elizabeth Truss

18th January 2025

The final piece of evidence which shows, on balance, that it was not intended as a serious legal letter

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So far this blog (here and here) has provided an immediate close reading of the libel letter sent by the former Prime Minister to the current Prime Minister, and yesterday it set out a more considered approach.

But there is one further thing which perhaps should be noted about the letter.

Let us look again at the first and final pages (which for reasons given in the previous points, I have taken out the letterhead of the law firm, though there is a reference to it on the the final page, which was unavoidable if I were to show the letter did not have a “wet ink” signature).

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There is something else missing, apart from the “wet ink” signature.

It is something which would normally be at the top of the first page, or maybe sometimes at the bottom of the last page.

The letter circulated to the media does not include any of the usual “furniture” of a legal letter: a reference number, the identity of the lawyer sending it, the email address for the recipient to respond to, and so on.

As this was a letter which explicitly was sent by email, then an email address for a response would be normal.

And given the law firm sending the letter lists three postal addresses for three offices, there would be a need at least for a file reference number or other identifying paraphernalia.

But there is nothing.

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Taken together with the evidence already detailed in the previous posts that this is a weak litigation letter, then this suggests one of the following scenarios:

1. the version of the letter sent did not have a “wet ink” signature, no reference number and no identifying information as to the lawyer and office which sent it;

2. the version circulated to the press was an unsigned “client copy” of the version of the letter sent, and the letter which was sent did have a reference number and identifying information as to the lawyer and office, and either Truss or someone in her circle leaked their “client copy” version of the letter;

3. the version sent and circulated to the press was not “leaked”, but was instead deliberately crafted and intended as a publicity version for release to the media, and so care was taken that this publicity version removed any identifying details.

Normally(!) the first option would the least likely, because it would odd indeed for a multi-office law firm (as opposed, say, to a High Street one-person firm) to have no identifying information whatsoever on a litigation letter for any reply to be directed to the right person.

Yet if it is the third option, then this would mean that the letter was never intended by Truss to be taken seriously by the recipient: it was always and entirely a media-political exercise.

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On balance, taking together both the muddled content (and lack of content) of the letter and the accumulation of telling details, this letter was never intended to be a credible litigation letter, it was always an exercise in publicity.

Your response to this may be (and perhaps should be) “duh, no surprise there, Sherlock” – but it is one thing to assert that a letter has no credible legal purpose, and another to demonstrate it could have no credible legal purpose, and to demonstrate on balance that it could have no credible legal purpose is what this short series of posts set out to do.

And, if so, it is an unwelcome development that lawyers’ letters are being. used for such a media-political purpose.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Why the Truss “lettuce before action” is worse than you thought – and it has a worrying implication for free speech

17th January 2025

Before we start, the “lettuce before action” (for “letter before action”) line has been taken from the estimable Paul Magrath, whose weekly legal email is a must-read.

I really wish I had thought of the line for last week’s post.

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The post last week provided a quick close reading of the gloriously bad libel letter sent on behalf of the former Prime Minister Elizabeth Truss to the current Prime Minister Keir Starmer.

That post was done at speed: I wanted to respond to what the letter actually said, before I was aware of what others said it said. This is always the best way of engaging any formal document: work out what you can from reading the text yourself, before seeing what others tell you the text says.

This approach has its advantages – and also its disadvantages, not least that one can miss things others will see.

There was also the problem I did not then have access to the second page – though it was fun to speculate what could be on that second page.

This is now a more considered post, adding to the points made in the first post (which I think stands quite well), with the bonus of what seems to be the second page.

And for the reasons set out below, there is a worrying implication in the letter in respect of free expression. This is perhaps odd coming from a politician who often emphasises her free speech credentials.

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First, here is the full letter with what appears to be the second page (which has been taken with thanks from here):

 

 

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The second page, which I speculated must have contained all what was missing from the other pages, in fact adds nothing substantial to the letter.

Here it is again:

But, for completeness, the second page tells us that the words complained of were not said in parliament and so there is no issue of the absolute privilege for what is said in parliament (paragraph [7] and the footnotes to paragraph [4]).

And Paragraph [9] somehow manages to weaken what is already a very weak letter.

We already knew that this was a “cease-and-desist” letter that somehow did not set out what would happen if the recipient did not cease and desist. Paragraph [9] now sets out the sender is not even demanding a legal remedy at all.

In litigation terms, paragraph [9] should have instead been in an accompanying “without prejudice” proposing an offer for a compromised outcome. But for some reason it was included in, and thereby undermines, the “open” letter that would be placed before the court when the matter came to trial. It is a strange inclusion in such a letter.

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As set out last week, this libel threat is poor.

It is perhaps the weakest libel threat ever sent by an English law firm.

That said, it is in my view just about within the scope that a law firm could properly send, given very precise instructions.

But those very precise instruction would have to be to the effect of “send the weakest litigation letter you can”.

And so for that reason, I am not making a point of mentioning the law firm.

We should not visit the sins of a client upon a lawyer, and Truss – like you and me – is entitled to legal representation.

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Now are some further, more considered observations on the letter.

Notice the bulk of the letter is concerned with the appended expert’s report, including – impressively – a paragraph [16] with seven(!) sub-paragraphs.

This bulk makes the letter rather lop-sided.

The “legal” bits of the letter are nowhere near as detailed as the “economic” bits.

The impression this gives is that the origin of the letter was probably this report, which was then given to lawyers with the instruction of somehow building a legal letter on top of it.

The letter was thereby likely to be a device for promoting the content of the report, which it certainly did.

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And this then probably explains the existence of this letter.

As was set out last week, it is an utter failure as a libel threat.

Although – with a squint – one can see that it just about meets the requirements of a legal letter, it is plain that was not its purpose.

(And perhaps one error last week was for this blog to treat it earnestly, on its own terms, as a legal letter.)

It is not a serious legal document, but a political and media document.

And contrary to the “Private and Confidential” marking on its front page, it would appear that the intention of the client (if not of the law firm, who would have no control of the matter) was for it to be leaked and published.

That this is the case is further evidenced by the circulated version being unsigned.

For while some legal letters are not signed, and there is no strict requirement for an “ink” signature as such, it is also often the case that the client copies of correspondence are also not signed, just the letter which is actually sent.

It would seem that the letter must have been leaked either by the client or someone in her circle.

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As regards the expert report, a number of commenters have focused on the identity of the expert.

But it does not matter if the economist’s report on which the letter was relying was by John Maynard Keynes or Adam Smith.

It made no sense to rely on an expert’s report in respect of facts which the same letter also said were “clear”.

That is not what expert reports are for in civil litigation.

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And now we come to the possible implication of the letter for free expression.

Reading the letter as a whole, including the now non-missing page two, the threat made against the Prime Minister could be made by her against any person at all who said the words complained of.

There is nothing in the letter which would limit the alleged liability to the Prime Minister for saying those words.

Generally libel is blind to the identity and motives of the person who “publishes” the words – in this case says words reported in the media.

The framing of the letter is such that any person who published the words complained of would be liable to Truss for general damages.

The letter is addressed to Starmer, but it describes a claim Truss could also make against world.

Fortunately this letter is so hopeless that nobody will end up with legal liability.

But the premise of the letter is an extraordinary widening of legal liability for political speech, catching many political speech-acts on social media and other published media which most be people would assume was part of their everyday free speech in criticising Truss for what she did with the economy.

Given that the sender often promotes her belief in free speech, this is perhaps further evidence that the content of this letter was not really thought-through by Truss, beyond being the means of widely circulating a certain favourable (but probably legally inadmissible) report.

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The Prime Minister gave what must be the most appropriate response to this letter in PMQs on Wednesday.

“I got a letter this week from a Tory voter in a Labour seat.

“I hope that they do not mind me saying who it was—it was Liz Truss.

“It was not written in green ink, but it might as well have been.

“She was complaining that saying she had crashed the economy was damaging her reputation.

“It was actually crashing the economy that damaged her reputation.”

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There has been no announcement of any formal reply by Starmer to the letter, which is not surprising given the letter did not ask for a reply, still less (remarkably for a supposed cease-and-desist letter) demand any undertakings, and the letter also did not include any deadline.

Truss, however, seems to want to have the last word.

On X (previously Twitter) she responded to the Prime Minister’s jibe:

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Here, if Truss sincerely thinks accusing someone of crashing the economy is defamatory (subject to any defences), then she is with her “closer to home” comments herself defaming someone else in turn.

But at least she put “cease and desist” letter in ironic quotes.

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Politicians and others (and their lawyers) should always be careful in using any litigation documents – from letters before action to third party submissions – for the purposes of publicity.

Judges certainly do not like it.

And if done badly, you also end up looking very silly.

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At Substack, last week’s post on Truss has now overtaken the post on Taylor Swift to become the second most popular post ever published on that blog.

And this is fitting in a way.

For an alternative title for this post could have been: “Litigation (Liz Truss’s Version)”.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.