The Supreme Court and Brexit - oblivious to the abyss

After the Divisional Court ruling in Miller, cyberspace was alive with (pro-Remain, surprisingly) constitutional lawyers piling in to criticise the judgment against the Government.  It's too early to say if yesterday's confirmation by the Supreme Court will attract the same opprobrium (although one such lawyer tweeted that the more he looked at it the more he found it full of holes*).

I'm not going to pile in with my own analysis - in an age which has had enough of experts my status as someone who briefly practised law in another field nearly 20 years ago does not even get me into that discredited bunch - but a summary of the issues might be of interest, and there's an overarching constitutional point which transcends the technical detail.

One of the dissenting judges, Lord Hughes, boiled the case down to two conflicting principles (para.277 of the judgment).

On the one hand the Executive cannot change law made by Act of Parliament or by the common law.

On the other the making and unmaking of treaties is within the competence of the government via royal prerogative.

Thus the conflict arises. If the UK withdraws from the various EU treaties that would seem to be concern the prerogative.  But because the European Communities Act 1972 has the effect of importing into UK law the substance of those treaties, UK law would be changed thereby.

Ah, said the Government, but no UK legislation would be changed by the triggering of Article 50. The ECA 1972 would remain unchanged. We would merely cease after two years to be a signatory to various treaties.

Maybe, said Mrs Miller's lawyers, but the fact is that UK laws would be changed as a result, without Parliament's say so.

Not so fast, said the Government. In the first place there'll be a Great Repeal Bill in which all current provisions of EU law will be retained, until Parliament repeals them.  Moreover there'll be a two year period of negotiation during which there's plenty of opportunity for Parliament to be involved.

The one thing that's immediately obvious about the above is that, until yesterday's judgment, no-one knew what the law was.

How could it be otherwise? The UK has never done anything like this before. The one constant factor in all the earlier House of Lords cases cited to the Court was that none of them covered the same ground. They were persuasive rather than directly on the point.

Moreover if the law had been clear the litigation would never have taken place. The lawyers of one side or the other would have said, "Listen, you're wasting your time here". But none of them did.

If the law had been clear the Court would have reached a unanimous decision. But there was a majority of 8 to 3.

Of course, the Supreme Court is adept at wording its judgments so as to appear that the law has been well-known all along. It has merely clarified what should have been readily apparent.

But this is a fiction. To clarify is to choose, and to choose is to create. The judges have created law. They have decided that the ECA is not merely a conduit down which the law from Europe flows. Even though the Act is not repealed, the effect of withdrawal from the treaties is to change UK law.

I repeat, no-one knew this before Miller.

And here is the overarching consitutional point I mentioned above. The case was brought to stop HMG changing the law without parliamentary consent. But on what basis did the Court make the law to stop the Government? Why, it did so without parliamentary consent.

And here's the real problem of Miller.

If the Government can't make laws without Parliamentary approval, why should the Supreme Court? After all, the Government is made up of individual MPs each elected by tens of thousands of people, gathering together as the largest Parliamentary political unit. In what world does the secretive appointment of eleven lawyers confer greater legitimacy?

The Court has laid itself open to the charge of hypocrisy, doing itself what it says the Government cannot do.

This is what the Supreme Court should have said:

"We accept there is a fundamental clash between two constitutional principles - that of Parliamentary sovereignty and the Royal prerogative. It is impossible to tell from the ECA what was the intention of Parliament at the time the Act was passed, or to derive from the case law any relevant binding principles. This situation has never arisen before. 

Both sides have argued persuasively, but the onus is on Mrs Miller to prove her case. We cannot find for Mrs Miller without creating law ourselves. This is something which the Courts should always be reluctant to do, because while they have a distant democratic mandate to adjudicate, they have no mandate whatsoever to legislate.  In circumstances where the substance of the issue before us is a dispute about law-making without Parliamentary consent, it would be extremely damaging for the authority and status of the Court to make law ourselves without any such consent. The law is not clear. It is for Parliament to clarify it should it wish to do so, not the Courts. For this reason the we must find for the UK Government".

Yet both the Divisional and Supreme Courts sailed on in their self-regarding way, unaware of the intellectual, moral and political abyss yawning beneath their feet.

Or nearly. Amid many useful things said in the dissenting judgments, thank goodness for this from Lord Reed (Para 240):

"Secondly, and more fundamentally, controls over the exercise of ministerial powers under the British constitution are not solely, or even primarily, of a legal character, as Lord Carnwath explains in his judgment. Courts should not overlook the constitutional importance of ministerial accountability to Parliament. Ministerial decisions in the exercise of prerogative powers, of greater importance than leaving the EU, have been taken without any possibility of judicial control: examples include the declarations of war in 1914 and 1939. For a court to proceed on the basis that if a prerogative power is capable of being exercised arbitrarily or perversely, it must necessarily be subject to judicial control, is to base legal doctrine on an assumption which is foreign to our constitutional traditions. It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary."

UPDATE: Here's a link to an article by Mark Elliott, Professor of Public Law at Cambridge University, in Counsel Magazine.  At one point Prof Elliott describes the Supreme Court's analysis as "sorely lacking".  Ouch.

Perpetual crisis in the NHS, and some suggestions for fixing it.

So the perpetual crisis of the NHS rolls into another of its acute phases.  Having had much more contact with the health service than I would have liked in the last two months, I can confirm that parts of it are chaotic and overstretched.  To submit to its cold embrace is a similar feeling to entering an airport - once on the wrong side of reception you become kine.  You leave your humanity at the gate. My wife said to me, "Your trouble is that when you actually get to see a doctor you try not to seem ill".  This is true.  It stems from my desire to fight against the dehumanising aspect of UK healthcare.

Anyway, what to do about Britain's best-loved institution?

The NHS's problems stem from the fact that we are not giving it enough money to fund adequately the demands we as a population make on it (I'll qualify this proposition in a moment).

This is happening for a number of reasons.  Inflation in the NHS runs at about 7%, about three times greater than current domestic inflation.  Moreover the range and complexity of available treatments is very much greater, more complex and more expensive than in the late 1940s.  At its inception the average working man died before he was 50.  Now he lives until beyond 80.

It's very expensive to maintain an old person.  Our population is getting top heavy with the elderly, which means the proportion of people paying taxes to fund the NHS is tending to shrink.  The population is also getting bigger quite quickly, to a considerable extent because of migration (one of the great pities of this debate is that almost no-one can bring themselves to say this in public, something which also cripples the national conversation on housing, inequality and the environment).

Many elderly people remain in hospital because there is nowhere they can adequately be looked after. Often their relatives don't want to take the responsibility themselves, or no local authority places are available.

A lot of people lead very unhealthy lifestyles.  A quite frightening proportion of Britons is obese.

Demand and cost are increasing at a rate which is outstripping our inclination or ability to pay for the health service.

We could fund the NHS more lavishly by paying more tax.  History tends to show however that there is a maximum that governments have been able to screw out of an electorate.  From memory it's about 36%.  We are there or thereabouts at the moment.  The likelihood is that HMG would fail to bring about significant increases in funding without cutting spending elsewhere.  Those arguing for NHS spending increases - the Labour party for example - need to explain what other services they would cut instead.

Of course, this being the Labour Party, the likelihood is that they would plug the gaps with borrowing. To recap, HMG is already borrowing more than £1 billion every week just to stay afloat. With Philip Hammond's recent abandonment of plans to balance Britain's budget by the end of this parliament, the Government's finances are already teetering close to the point of no return, calculated by some economists as the point at which debt equals about 100% of GDP*. In any event, the increase would essentially involve financing current spending (as opposed to infrastructure) by borrowing, which is morally indefensible, involving as it does using future income streams (ie the income of the yet-unborn) to fund the lifestyle and services we want to have today.

If the NHS's problems can't be fixed by increasing taxes or borrowing, what can be done?  Here's a range of piecemeal solutions -

Clamp down on health tourism. One trust which has carried out a pilot scheme reckons to have saved hundreds of thousands of pounds. Roll it out nationwide.

Monitor trust spending more closely. An NHS trust in Manchester recently advertised for an Assistant Diversity Co-ordinator at a salary of £70,000. One imagines that together with her boss this will be costing the trust the best part of £200,000 per year.  A Doctor friend tells me that the Chief Exec of this Trust is a raging Trotskyist, so no surprise there.

Train more British doctors and nurses. Locum staff are costing the NHS hundreds of millions.

Penalise those who don't take their health seriously. Impose a sugar tax and a minimum price for alcohol.

Campaign to consolidate centres of excellence. It's much better to have one urology unit with four consultants rather than two fifty miles apart with two consultants (yes, I know people don't like it).

Outsource routine operations like hip operations to the private sector, which can specialise and institute economies of scale.

Make GPs provide better services for the same money. As the Junior Doctors strike showed, the medical profession has been treated with kid gloves for far too long. The public starts off with great sympathy for doctors, until it discovers the realities of their pay and pension arrangements. Doctors work hard, at least at the beginning of their careers, and are suckling at a very generous teat.

Make people pay to see a GP. I pay £8 for a prescription and about £20 to see a dentist. There's no reason why a similar arrangement couldn't work in the NHS. By all means make the treatment free for someone who could prove they were on benefits. A service which is free at the point of use invites unrestricted demand. There is simply no disincentive for the daft or hypochondriac not to visit the Doctor. As with the judicial system, there has to be a financial cost of accessing the service or it will be overwhelmed.

Incidentally, the cost of seeing a GP in Ireland is about £50.  The cost of going to Casualty without seeing a GP first is about £100.

This brings me back to my third paragraph. It implies that somewhere out there a nameable sum exists which could adequately fund the NHS's demands. There is not. The more money you give the NHS the more people ask of it.

Will Theresa May's government grasp the nettle? Of course not. No government will, as long as the pain of inaction is perceived to be less than the pain of doing something.

The Labour Party will never introduce NHS charging, notwithstanding the comparable situation with prescriptions and dentistry, because, no matter how unfit it might be for the 21st century, the NHS is its founding achievement.

Elements of the Tory party might be aware of how to begin fixing it, but they know it would mean electoral suicide.

I can see only one scenario in which the requisite steps might take place. That would be after a long period of Labour government with attendant financial incontinence and NHS disaster. Then, and only then, might the Tories pluck up the courage. But at this stage it is impossible to see that scenario lurching into being.

The NHS crisis - not going anywhere soon.

*By happy coincidence, the same day I wrote this piece the Office for Budget Responsibility issued a report saying that the public finances were on an "unsustainable path" and that at the present rate of deterioration public sector debt could increase to 234% of GDP in 50 years time.  It blamed increased spending on the NHS and state pensions in particular.  If the OBR is right our economy will of course be toast long before 2066. Something will have to be done. What? When? And by whom?

Rogue One - another duff one?

I yield to no-one in my love for Star Wars.  As I've written here before, I saw the original films when they came out in the 70s, and was young enough to be overwhelmed by them, although old enough to recognise that the moral, personal and political world they portrayed was fundamentally tosh.

I made my wife, my eldest and a friend come out and watch Rogue One with me yesterday, because it was my birthday.  This is what I thought.

1.  It was an enjoyable way to spend two and quarter hours.  The film looks great, although once SPOILER ALERT you know that the fleeting cameos of Peter Cushing and the young Princess Leia are merely CGI mock-ups, you can tell.  Interesting that the human face should prove so hard to fake.

2.  Rogue One is, as Mark Kermode keeps telling us, dark; which is all very well, except part of the attraction of the original three films was that the darkness (particularly in The Empire Strikes Back, easily the best of them) was nicely mixed with humour, a variety of tone which is very, very difficult to accomplish without the one undermining the other.  No such luck here.  The new 'droid, whose name escapes me, was often funny, but the other characters were wooden dullards by comparison.

3.  The original characters were interesting and memorable. Any one of Han Solo, Leia, Vader, C3PO, the other 'droid, Obi or Yoda has more interest than the whole of Rogue One's cast put together.  The new baddie, played by Aussie actor Ben Mendelsohn, looks like a middle-manager at Debenhams who has just been told the company golf day has been cancelled, again.  I didn't care SPOILER ALERT that the cast were overwhelmed by the Death Star at the end, because they failed to come alive in the first place.

4.  The plausibility issue.  The blind martial arts bloke who thinks the Force will protect him, and then finds out that it won't could have made tragic viewing, but Rogue One just made it look the idea of the blind ninja ridiculous.  The hero of David Carradine's Kung Fu series in the 70s looked daft enough fighting men with guns, and he could actually see.  Why do the Death Star operators don hats which look to this (retired) cricketer as they have put their heads inside a bowling machine?  We don't know, and the film doesn't tell us.

5.  My son points out that the Empire in the Star Wars franchise is perhaps the only one in (cultural) history to have no ideology.  It's almost as if the Empire is so bad that its sole purpose lies in being bad, just for its own sake.  And then there was the lazy set design - Darth Vader lives in a ghastly evil genius tower set at the heart of an Icelandic CGI lava flow.  Why?  Did he go to some architect and say, "I'd like an evil genius tower please"?  It's almost as if the film makers had got together and said, "How could we find somewhere for Darth Vader to live which will look like every villain's retreat ever since cinema began?"  As for the transmission tower from which, at the denouement, our heroine - the heroically dull Felicity Jones - must send the Death Star plans to the Rebel mothership, how curious and unimaginative that the clunking controls should be on the outside of the tower, exposed to the elements and in plain view of passing Empire vessels.  Yes, expecting Star Wars to be realistic is naive.  But what we expect from fantasy adventure is not realism: it is internal consistency.  If the world is to be like that, we want it to make sense on its own terms.  This is something Mervyn Peake does so well in Gormenghast, and, for that matter, George RR Martin in Game of Thrones.

6.  The music.  John Williams has taken a back seat, and the reins have been taken by Michael Giacchino, who first came to my attention with The Incredibles.  Giacchino does a decent job, but he is not Williams, and the few occasions when he uses the master's tunes only remind one how operatic and varied were the original scores.  I listened to Luke and Leia today from The Empire.  Now that is quality.

7.  That so half-hearted, ill thought through and badly written a film (the Council scene is beyond lame) could have been given a reasonable reception goes to show that film critics my age who were brought up on the originals are almost willing the new films to be as good as the first three.  I think the truth is that the first three mixed adventure, humour, great characters, peerless scores, a new world of special effects and a sort of camp approach to cliche which induced a suspension of disbelief in a young audience which is now well on into middle age.

So on the whole B or B minus.  But I'll still be going to see the next one.  My birthday or not.

Brexit reflections #16 - Judicial activism, Article 50 and the irony of Miller

That amiable denizen of Pinner, Danny Finkelstein, has written an article in the Times this morning which lays bare the bitter irony of the Supreme Court's handling of the Article 50 case. He writes, "Courts have to interpret the law, and the point of law the Supreme Court is interpreting is . . . whether the power of governments to agree treaties extends to their power over Article 50".

In a way Finkelstein's clumsy syntax makes the problem clear.  The Court is not "interpreting . . . whether".  It is deciding whether.

Let me explain.

No one knows what the legal position is regarding Article 50 and the Royal Prerogative.  If anyone did, the case would never have come to Court.  If, for example, triggering Art 50 without a vote was manifestly unlawful, the Government's advisers would have said, "Look chaps.  Don't waste public money.  You're going to lose".  But actually both sides' advisers will have said, "You've a chance of winning because you've got an arguable case.  But we really don't know because these circumstances have never arisen before."

So the law is not clear.  The Court will clarify it.  But consider what that process involves.  It involves picking from various options.  There may be only two (Options A and B, say), but it's much more realistic to say that there will be half a dozen.

In picking one option rather than all the others the Court is making a decision.  It is deciding what the law is. Not interpreting.

So we have the bitter irony that a case brought to prevent the Government triggering Art 50 without democratic scrutiny by Parliament will be decided instead by the judicial activism of the Supreme Court.

Thus a Government elected by the people on a manifesto pledge to hold an In-Out referendum and to implement the outcome if Leave won, buttressed by the votes of nearly 18 million citizens, will be stymied and obstructed by eleven unelected judges.

What particularly grates about the prospect of a victory by Ms Miller and her City chums is that a case designed to prevent law-making by the executive - never mind its double mandate from the electorate - will have been decided instead by the law-making of a tiny group of people with no mandate at all.  At any time.  Ever.

Of course the fact that the judges are from the exact demographic which opposed Brexit so passionately and sneered at the mugs from the provinces who, you know, didn't think the EU worked so well for them, just makes it worse.

If the Court upholds the earlier decision - which I think it will, albeit for different and more carefully argued reasons, perhaps with a couple of dissenting voices - it will do so in terms which do their best to disguise its legal activism.  It will say that this is what the law has always been, and that they have merely interpreted it afresh.

The pro-Remain press - of which Danny Finkelstein is a reasonable and articulate exemplar - will ignore the Court's activism (at best, or fail to notice it at worst), and dismiss the resulting surge of pro-Brexit anger as the inchoate howl of the ignorant and uneducated.

I've referred before on here to the historian Tom Holland's identification of this clash as one between democracy and the law.  I think that's a fair characterisation on the whole.  But a finding for Ms Miller will be to prefer one sort of decision making (the undemocratic one of the Court) to one backed up by an election-winning manifesto pledge and referendum result.

That is not a clash between democracy and the law.  It is a clash between democracy and anti-democracy, in which democracy is the loser.

Brexit reflections #15 - the myth of judicial independence

Following the High Court's Article 50 hearing there's been a lot of rubbish written recently about judicial impartiality.  Judges are independent, goes the cry (you can tell that a lot of the writers, even the ones on the Left, would really like to carry on with a few choice extracts from Henry V).

But if you think about it for a moment, judicial independence is a myth.

It's true that, once they get into office, judges are free to apply the law as they see fit, always subject to the humiliation of being overturned on appeal. However there's the vexed question of how they get to be judges in the first place, and moreover what qualities they bring with them to the post.

In the old days becoming a judge was, like the process of becoming Queen's Counsel, a matter of a tap on the shoulder. Is old Scroggins a sound chap?  Very much so.  Not bad for a Wykehamist.  Sign him up then, pronto. That all changed in the Blair years.  Exhaustive application forms were to be filled in.  Applicants were invited to state the steps they had taken to promote diversity (one QC applicant failed on this part of the test; surprising, since he was married to a black woman, a fact he didn't dare mention).  Interview panels were set up. A small cottage industry (in which I once made a fleeting appearance) grew up to assist applicants, one which was so successful that some forms now require hopefuls to state whether they have used its services.

The effect of this process has been to accelerate what was in any event a tendency. The old Sir Bufton Tufton judges one still occasionally came across in my sojourn in the profession have been gradually replaced by the impeccably liberal types who toked on the occasional spliff at Oxford in the 60s or pogo'd to the Clash in the 70s. These men and women are in the 50s and 60s, and I know a good many of them. They are civilised, interesting, intelligent and, almost invariably, Left of centre and pro-EU.

In a way it's true that they are independent; but they are not independent of themselves. They come into judicial office as fully formed mature individuals, with views of the world and of British society they take with them into office. The only one I can think of who is not of the liberal Left claims to shoot rabbits through his bathroom window whilst at stool (notwithstanding the grotesqueries, this is a picture I would quite like to see).

And so do these people put their weltanschauung to one side whilst on the bench?  They may honourably try.  But, as I've written elsewhere, judges so often, consciously or otherwise, look for the meritorious party and then search for the legally defensible way of finding for them.  They do not merely examine the law.  Legal history is full of the antics of these judicial contortionists, and their hapless thrashing around has given rise to the old cliche, "hard cases make bad law".

The thorough trashing the High Court got for their handling of the Art 50 case (even from pro-Remain legal academics) suggests either that such motivations may have been at work or alternatively that the judges in the Miller case were simply way out of their depth.

Expect a more sophisticated version of the same in the Supreme Court.  Judicial independence is a load of tosh.

An end to austerity?

I'm not the only person to think that last week's Autumn Statement marks a shift in economic outlook by the Government. This may seem arcane, but it says a lot about where Britain is as a nation.

You'll recall that in the dim and distant past of his Chancellorship, George Osborne had plans to bring down the deficit to zero by the end of this Parliament.  His successor, Philip Hammond, has abandoned these plans.  There will be a number of reasons for this.  The first might well be the economic uncertainty of approaching Brexit - the last thing the UK needs is an avoidable recession caused by a further squeeze on HMG spending.

It's the other reasons which are interesting though.

One is that the Government thinks that it can stand to borrow a bit more in an era of historically low rates.  This is what Labour has been saying for years (although they have also, incoherently, been criticising the Tories for borrowing too much).  Another is that a significant part of Osborne's plan for getting borrowing down lay in bearing down on tax credits, the in-work benefits introduced by Gordon Brown.  Many Tory MPs, fearful at the reaction of their constituents, refused point blank to countenance this and the plan was quietly dropped.

I can't think of a better example of the ratchet effect of public spending - giving benefits to people is very easy; taking them away is very difficult.

What will the effect be of Hammond's purse-string slackening?  The obvious one is that as the deficit remains stubbornly high our stock of debt goes up still further.  Hammond's spending is calculated to take Britain's stock of debt to 90% of GDP, the point at which, according to some research, interest repayments start to impede an economy's ability to grow.  Interest rates on bonds are low now, but in the future borrowing will have to be rolled over, at rates which are unknown but could scarcely be lower than at present.  Every extra £ borrowed is a gamble on future interest rates.

The proposition that a state cannot go on living beyond its means forever is susceptible to the observation that provided GDP (or more accurately tax revenue) continues to grow more quickly than accumulated debt it is likely that markets will continue to lend at affordable rates.  The trouble with this calculation in the case of the UK is the reverse is happening.  Public debt is rising faster than tax revenues.  In other words, we are spending an ever increasing amount of our national income on interest payments.

So the situation is that with a narrow but serviceable Tory majority in the Commons, the opposition in disarrary, there are insufficient fiscal conservatives at Westminster to grasp the nettle.  We are back in the land of Please-Lord-make-me-solvent-but-not-yet. To a return to a point made many times on this blog, we cannot afford to pay for our public services.  We appear to be intent on continuing to live unaffordably forever, the pain of living within our means being too great for it to be contemplated.

This state of affairs will continue until the pain of living beyond our means is even greater.  I shudder to think about what our country will be like at that point.

Hello to (and from) Voice of Peason.

Ed Vaizey, the former culture minister, was quoted recently in the Torygraph as saying the arts Establishment in Britain was suffering from relentlessly Left-wing groupthink. As someone who's laboured in this field in a minor capacity, my response to this apercu was of the No-Shit-Sherlock variety.

That's why, after five years blogging under my real name, with a modest but growing readership, I've finally become too worried about who might be reading it, and opted instead for the title Voice of Peason (Peason being Molesworth's "grate friend" in How To Be Topp, and other deathless titles from the pens of Geoffrey Willans and Ronald Searle).

It's a shame that Britain now has to be like this.

Artists are prone to Left-wingery for a variety of reasons. They - we - want to be nice. We're concerned with morality. We wish resolutely to create and interpret the world on our own terms. Those terms do not necessarily include close study of the externalities, which can get in the way of our vision. We also find the sobering nuts and bolts of economics somewhat tedious; I used to be the same, but then I became interested and have never looked back. As Mrs Thatcher said, the facts of life are Conservative.

Why is it that the Left hate the Tories so much? Despite thirty years as a Lefty, I still can't answer that satisfactorily. I suppose I thought the Tories were mean, favoured the rich and hated the poor. If that were true it would make Conservatives eminently dislikeable. In fact because the Tories tend to run the economy better than Labour they provide more jobs, and because they are more tight-fisted they tend to run public services on a more sustainable basis. But these are arguments that, in my experience, no-one on the Left wants to hear. Speaking to friends I detect a refuge taken in self-righteousness, as if the more they hate the Tories for their alleged heartlessness the better it makes them feel about themselves.

So what do I believe, and do my beliefs make me repellent?

I am in favour of free-speech unless it threatens or might cause violence; I don't believe anyone has the right not to be offended.

I believe we can't afford our public services in an age when we're living well into our 80s; in the long run the country must live within its means.

I don't care what colour someone's skin is, but I do care very much what they do, and I don't think we should be afraid of saying we don't like someone's culture. I'm baffled why we let into Britain so many people who persist in clinging to the practices which made their own countries such a mess.

I don't think we should be ashamed of our imperial past which, as well as much that's bad, included action to stop slavery and exporting some of the best aspects of our culture; we always need to ask what the countries we colonised would have been like if we had left them alone.

I'm opposed to Scottish independence because it would make Scots dramatically poorer, but I'm pleased we voted to leave the EU because whilst it benefits me, I can see around me all the time the deleterious consequences of uncontrolled migration for people at the bottom end of British society.

If these views sound anathema, please don't deprive yourself of the opportunity to listen to someone who disagrees with you.