It is a characteristic of our decadent intelligentsia – the regime, the new elite, the cathedral, the Establishment, call them what you will – that they speak of Great and Important things, but in doing so reveal themselves to hardly think at all.

One of the Great and Important things they like to talk about is something which they call, always with a slight quiver in their voices and a pronounced capital ‘C’, the Constitution. In this, they are of course aping their American cousins – the British elites adopt their ideology wholesale from the US Democratic Party, and since Americans like to talk about the Constitution whenever they are trying to win a political argument, the British elite have adopted this habit, too. Politicians who rock the boat are threatening the Constitution. And they must therefore be cast out of politics entirely, lest they undermine the ancient liberties that our ancestors fought two World Wars for, like, er, the Human Rights Act 1998.

For a long time now, these people have been carefully laying the groundwork for total political warfare against a future Reform government led by Nigel Farage, or else some Frankenstein’s monster of a Tory-Reform coalition. And one can see where the trenches are being dug and the artillery positioned in preparation for the coming conflict. Just like the Democrat establishment in the USA waging its guerrilla campaigns against Donald Trump, or the mainstream parties in Germany trying to suppress the AfD with their ludicrous ‘firewall’, the strategy is going to be one of delegitimisation on the basis of constitutional threat. The British Right, we are going to be told again and again and again and again, are constitutional vandals. They are hell-bent on tearing up the precious fabric of our legal and political traditions, those which have sustained us since the Restoration; nay, Magna Carta; nay, the days of Alfred the Great. They care nothing for the rule of law. They are naughty boys. And they will stop at nothing to establish executive hegemony and, ultimately, tyranny.

It does not matter that this is stuff and nonsense. It is catnip to what passes as our intellectual elite. Leading otherwise humdrum lives, there is much excitement for these people to be gained from imagining themselves as part of a grand rebel alliance against what they call ‘populism’. It imbues their very bland, technocratic, uninspiring politics with High Drama. And they are transformed by it into protagonists in some terribly grand Manichean struggle against the forces of barbarism and bad juju.

A good example of this came into my inbox the other day in the form of a blog post written by Professor Mark Elliott, titled ‘Tyranny, anarchy and the rule of law: Reflections on a major report by the Constitution Committee’. Professor Elliott is a Cambridge academic who used to write speeches for the man once widely thought of as the architect of the Human Rights Act 1998 (‘HRA’), Derry Irvine (now chiefly remembered for having been booted to the sidelines by Tony Blair after having his office redecorated at taxpayers’ expense to the tune of £650,000). Elliott is also associated with the ‘common law constitutionalism’ movement, which seeks to entrench the Blairite human rights settlement by claiming that it is all just part of the common law anyway and that repeal of the HRA, when it does eventually occur, should make no difference. And he is therefore about as emblematic of the great and good of the legal academy as they come – an avatar of regime-thinking circa 1997-2025.

Elliott’s piece was written in response to the recent House of Lords Select Committee on the Constitution’s Report on ‘The Rule of Law: Holding the Line Against Tyranny and Anarchy‘. The Report itself is a bit of silliness – an opportunity for some of the most privileged people in the world (British peers, judges, senior lawyers, academics, trustafarian think-tankers, and so on, not to mention Anne Applebaum) to get together and define ‘the rule of law’ as meaning all of the things they like, and thereby cast anybody who disagrees with them as being against ‘the rule of law’. But one aspect of it is of interest, which is its attempt to locate what is happening in Britain – i.e., rumblings about repudiating the European Convention on Human Rights, complaints about ‘two-tier justice’, criticisms of judges etc. – within a global ‘rule of law crisis’ instigated by Donald Tr… sorry, ‘populists’ and ‘authoritarians’.

Elliott, like the House of Lords Select Committee, is coy about what the ‘rule of law crisis’ actually consists of, where it is happening and who is causing it. We hear an awful lot of gloomy mutterings about “dismantling of the executive’s legal accountability to the courts, the removal of basic rights or the undermining of fundamental democratic principle”, without ever learning where these threats might come from, how they fit into this broader ‘rule of law crisis’, and where they are currently manifesting themselves. But Elliott is clear about something. Out there in the country there are these populists, you see. And they are committed to “constitutional assault”, “doing violence to the constitution”, “constitutional vandalism” and even – somebody had better get the cat in – “fundamental constitutional vandalism”. It is bad enough that we have until now had a bit of “constitutional recklessness”. But now we could be heading towards something truly “systematic”.

What Elliott really means by all this is that one day soon it seems likely that a Right-wing government will be elected and will seek to undo the Blairite revolution, central to which project will be repealing the Human Rights Act 1998, along with various other attempts to give judges less power (e.g. by trimming back the scope of judicial review). This, as you will well know if you are older than, say, 40 years old, is hardly going to make the sky fall on anybody’s heads – we seemed to manage okay before 1997, and in any case the major advancements in non-discrimination and equality that have taken place in British public life in the past 50 years (workplace equality, gay marriage, etc.) had nothing really to do with human rights law.

But to somebody like Elliott it will feel disastrous, partly because the package of Blairite reforms have taken on such totemic significance within academic circles and within the legal establishment more broadly, and partly because those reforms are so closely aligned with the class interests of the ‘new elite’ as such. And to him it really will therefore feel like an act of ‘constitutional vandalism’, even if this means relying on an understanding of the words ‘constitutional’ and ‘vandalism’ that is – can I speak frankly? – conceptually vague.

In order to identify a constitutional vandal, it goes without saying, it is necessary to define what one means by the constitution and how it might be vandalised. Let’s, then, take a moment to think these things through.

What is a constitution? This is not a subject on which it is easy to gain complete agreement, but to paint with a broad brush, let’s call it the order that gives structure to the relationship between the ruler and ruled, such that the ruler does not rule simply by arbitrary whim, and the ruled do not exist in a state of mob-like anarchy. That order is a mixture of law, custom, institutions, settled practices and a sense of propriety; most countries have a written constitutional text, but any sophisticated understanding of the concept would recognise that ‘constitutionality’, if I can call it that, is more than merely textual.

The UK constitution is unusual because, traditionally, the legal or textual aspect of constitutionality was more or less nonexistent (putting the English understanding of the constitution much closer, in some ways, to that of Plato or Machiavelli than Publius or Robespierre). This has led some scholars to label it a ‘political constitution’, meaning one with a strong emphasis on institutions and conventions rather than law. Parliament can make whatever law it wants, and is therefore unconstrained by law; its only constraints are its own procedures and a strong sense of what ought or ought not to be done – and, of course, an even stronger sense that ultimately it is accountable to the electorate. The public law theorist J.A.G. Griffith famously said that the British constitution is just “what happens”; it is not theorised or set down at any fixed point in time but a fairly fluid, ongoing process through which that most British of all British things, ‘muddling through’, plays out politically.

How the UK constitution could be vandalised is therefore a concept that needs some unpacking. On the one hand, in the UK context it is hard to separate out ‘vandalism’ from ‘change’. Since the constitution is not fixed, but fluid, it is easy to fall into the trap of seeing ‘vandalism’ everywhere. To steal from Hobbes, just as “they that are discontented with monarchy call it tyranny”, they that are discontented with change call it ‘vandalism’. But that does not mean that it is actually so.

On the other hand, ‘vandalism’ does have a meaning: it implies damage that is unnecessary – damage inflicted for the sake of it, or thoughtlessly or recklessly. Just changing things alone, even in a way that in the eye of the beholder seems undesirable, is not ‘vandalism’ in itself if there is a coherent rationale for it and it is done prudently. There needs to be rather a lot more than mere undesirable change (viewed subjectively) to make something vandalism.

A working definition of ‘constitutional vandalism’ might therefore read something like:

vandalism, constitutional (noun) the act of deliberately, thoughtlessly or recklessly damaging the order that gives structure to the relationship between ruler and ruled.

And, seen in this light, things get an awful lot fuzzier than the likes of Mark Elliott and the House of Lords Select Committee on the Constitution initially make out or would care to admit. This is because – I hope this is not too obvious a point to make to my well-educated and discerning readership – the New Labour constitutional reform agenda, which along with the passing of the Human Rights Act (HRA) also attempted to establish an independent judicial branch of government where none had previously existed; mostly removed hereditary peers from the House of Lords and turned it into something like a House of Appointees; created devolved legislatures in Scotland and Wales; and oversaw a great expansion in the range and scope of quangos and other ‘arm’s length’ bodies – it did all these things, and in doing so begins to look rather constitutionally vandalistic itself given its rapidity, thoughtlessness and the many undesirable and unintended consequences to which it gave rise.

It is well understood that a lot of these reforms took power away from Parliament and put it into the hands of unelected appointees – an expert class by no means limited to the judiciary, although including it, of course. That in itself represented a fundamental and rapid transformation in the relationship between ruler and ruled – for it indeed changed the very composition of the ruling class as such, and placed its decision-making processes and aims and objectives much further beyond the reach of the electorate than they had previously been.

But it is also well understood, especially as time goes on, how recklessly and negligently this reform agenda was implemented. The classic example of this is the farcical attempt to abolish the office of Lord Chancellor, which was thought to be something that could be done with a sweep of the pen but which was finally abandoned some seven years later after it turned out to simply be too complicated.

That stands as nothing, though, next to the damage done by the delegation of judicial appointments to the Judicial Appointments Commission (which removed the process from democratic oversight and thereby made the judiciary the marker of its own homework) in 2006; the creation of a Sentencing Guidelines Council (forerunner to the deeply politicised Sentencing Council) in 2003; the operationalisation of the ‘Net Zero’ agenda through the establishment of the Climate Change Committee in 2008; the little known Tribunals, Courts and Enforcement Act 2007, which made it much easier to become a tribunal judge and in the long term drastically lowered standards at the coalface where employment and immigration and asylum disputes are heard; and so on.

And it stands as nothing next to the pinnacle of the Constitution as the new elite now think of it – the Human Rights Act itself, which with the benefit of hindsight now can only be described as a spectacular unforced error. Britain, outside of the narrow context of the Troubles in Northern Ireland, had a healthy civic culture in the early-mid 1990s characterised by fairly high levels of trust, compared to elsewhere in the world. It was by no means perfect. But what we have in 2025 is worse in almost every respect, with much of the malaise being attributable to the indefensible way in which decision-making has been insulated from elected politicians and the will of Parliament.

The HRA is by no means the only cause of this, or the only example. But in respect of matters of immigration and asylum its influence has been almost nothing but malign. For decades after its enactment elected politicians of both the Labour and Tory parties tried to create a sane, sustainable system of border control based on deterrence. And for decades they were thwarted by the insistence on the part of the courts that deterrence was, to all intents and purposes, against human rights law (chiefly Article 3 and Article 8 of the European Convention).

The significance of this issue is totemic. Owing chiefly to the Human Rights Act, whose existence essentially means that anybody from a country such as Sudan, Eritrea, Afghanistan, Iraq or Syria who is physically able to get onto Britain’s shores is unlikely to ever be forced to return home, we now have a de facto policy of open borders with some of the most dangerous and misogynistic societies on the planet. In fact, it is a worse policy than one of open borders, since it also requires us to provide subsistence support and accommodation to those who arrive in perpetuity to ensure they do not become destitute.

And the result has been profoundly politically destabilising and ruinous to national morale and sovereign authority. The spectacle of the state’s complete incapacity to deal with the problem is driving a breakdown in trust that is truly fundamental, since above all other duties of the sovereign the most important and foundational is to determine who has the right to freedom within the polity on the grounds of citizenship and who does not. The illegal migration problem fudges that, making citizenship itself almost irrelevant. And this is disastrous for the sovereign’s own self-image.

When a state fails to deal with illegal immigration adequately, it is put in the position of teacher who has lost control of the classroom or, in football terms, the manager who has ‘lost the dressing room’. Its authority crumbles away and it is left red-faced and flustered, unable to even communicate effectively with, let alone control, a population which now views it as fundamentally ridiculous and inept. This is what the HRA has wrought – its other effects have been bad, but this one is ruinous – and all of it was totally unforeseen by those who fought so vigorously to have it passed.

Depending on one’s perspective, in other words, much of what is now routinely described by legal academics as the settled constitutional order is really a protracted series of significant changes brought in since 1997, which could well be described as vandalism based on the foolishness and thoughtlessness of the harm they caused. And in this respect any forthcoming ‘populist’ revolt could itself well be described as an effort to undo nearly three decades of focused, not to mention ‘systematic’, damage wreaked on what I earlier called the “order that gives structure to the relationship between the ruler and ruled”. Such a revolt, it may be thought, might even manage to restore that relationship to its proper status by reconstituting the meaning of ‘ruler’ to encompass chiefly those people who are elected, rather than appointed because of some purported expertise. But whether or not it does, you of course take the broader point that who exactly the ‘constitutional vandals’ are is a subject about which reasonable people can firmly disagree.

The unwillingness and inability of our Establishment intellectuals to think these sorts of things through and to appreciate that there are in fact different viewpoints about such matters has had a habit of leaving them with their pants down. It happened at a spectacular scale with the Brexit vote, of course, and is currently happening in an almost equally grand way with the implosion of Starmer’s Government (originally hailed by the great and good as a return to ‘adults in the room’ politics). And it will also happen, it seems safe at this point to say, when it comes to all this hand-wringing about the constitution and the threat of ‘populists’.

A grimly amusing development in Government from the past week or so elucidates this quite nicely. You will have heard, if you are in the UK, of the plans that David Lammy, the Minister of Justice, has set out to reform – that is to say, mostly abolish – the system of jury trials. Jury trials will, if all goes according to Lammy’s plan, only take place when a suspect is prosecuted for murder, manslaughter or rape – or when it is in ‘the public interest’ (i.e., presumably when a judge decides it should).

It is difficult to think of a change that could better be described as ‘constitutional vandalism’ than this one. As legal commentators never tire of pointing out, jury trials have been part of the criminal justice system in England since at least the days of Magna Carta and in fact long before it. And the system clearly has constitutional import, because it directly concerns the “order that gives structure to the relationship between the ruler and ruled”. For nigh on a thousand years, that order has determined that it is not in the gift of the ruler to have an exclusive view on matters of guilt and innocence. In fact, it is the ruled who make those determinations among themselves. And this is, in turn, of crucial importance in limiting what the ruler can do. The ruler cannot punish anybody without the say-so of a group of his or her peers. This principle, one might even say, provides the relationship between the ruler and ruled with structure.

This has placed jury trials in the cross-hairs of constitutional reformers in the UK for some time, because of course ordinary people are not experts and are presumptively, therefore, stupid idiots. Stupid idiots should not be allowed within a barge pole’s length of anything resembling an important decision. We should, it has been thought, rather allow people who know best to conduct prosecutions and sentencing, just like they do in mainland Europe where things are so sensible.

And it should be no surprise at all to find a Labour Government attempting to do away with the system more or less entirely, since the last attempt to do so came in the form – surprise, surprise! – of Tony Blair’s government’s attempt to do away with jury trials, beginning in 2003. In those days the proposal was initially limited to fraud cases, on the grounds that the facts in such cases are generally too complicated for stupid idiots to understand. But then it expanded to coroners’ inquests, and the idea has never quite gone away that, all things considered, it would be better to just let the judiciary handle things so as to achieve better, more ‘just’ and more efficient outcomes.

The pattern, in other words, was set along precisely that which was set for all of the other aspects of New Labour’s agenda of constitutional vandalism – that is, through an emphasis on government by experts. The problem with jury trials is that they are democratic. A jury is comprised of a group of ordinary people who get to make a determination for themselves. This will not do, because ordinary people are not as clever as judges. And just as, if left to their own devices, ordinary people do horrendous things politically, like voting to leave the European Union, and horrendous things for their health, like smoking or drinking too much, it follows that they will also do horrendous things if allowed to be the locus of justice in criminal trials.

That the House of Lords’ report on the rule of law should have been released so soon before David Lammy’s announcement, is, as I said, grimly amusing in its own way – even though Lammy’s officially stated reason for his proposed reforms is mere expediency. Slowly but surely (and, indeed, no longer even very slowly these days) it is being revealed, across the piece, that the class of people who have been running the UK’s regime over the past 30 years – the politicians, the civil servants, and the vast ‘aristocracy of real or pretended scholars’ from whom they imbibe their ideas – have no real idea what they are doing and have been presiding over a slow institutional hollowing-out. All the while they have been talking a good game about being the sensible, wise, reasonable people who simply need to be left alone to manage things to maximum effect. But what we are now seeing is that they are desperate, callow and rather foolish – warning all the time of a coming apocalypse of populism while achieving outcomes just as damaging to good governance than any purported populist might realise.

That a collection of bleats about “holding the line against tyranny and anarchy” should have been issued from the House of Lords on almost the very eve of the Minister of Justice proposing to mostly do away with trial by jury is a neat illustration of this fundamental frivolity. They look at the words “tyranny and anarchy” and see them as a synonym for Donald Trump, Nigel Farage and no doubt other figures such as Bukele and Milei too. That it might be the very adults-in-the-room themselves who threaten the most ‘basic rights’ is an idea which they simply are not equipped to compute.

These people look and sound serious, in other words, but they are not. And it is very difficult to shake off the sense that the very Yookay regime itself is drawing to a close as currently constituted, and something new will soon replace it. Those who are supposed to be intelligent and educated are not so; those who are nominally in charge are unimpressive and shallow; what public figures say and do is shoddy and thoughtless; the things that we are enjoined to worry about are not dangerous at all, and the dangers which confront us go unaddressed. We creep further and further towards a cliff-edge; we all sense that momentum is carrying us forward to an ending of some kind. In such times one begins to wonder whether a bit of populism might not be just what the doctor ordered.

Coda

As an addendum, I thought I would say a little bit more about the right to trial by jury which, coincidentally, I have been writing something about for a piece of Proper Academic Work (i.e., something with lots of footnotes and which almost nobody will read). It is a little bit of an ‘inside baseball’ tale, but one which struck me as ironically amusing. Gather round for a moment, then, children, as this post draws to a close – it’s story time.

Long, long ago (well, three years ago), there was a man who wished to pursue constitutional reform in the UK. Let’s call him ‘Dominic Raab’.

Dominic Raab’s big idea, building on other big ideas mooted by various Tory figures over the years, was to have a so-called British Bill of Rights, which got its first reading in Parliament as the (awkwardly titled) Bill of Rights Bill in June of 2022. One of its least remarked-upon components was contained in clause 9. This provided that Article 6 of the European Convention on Human Rights (ECHR), which guarantees the right to a fair trial, in the British context included trial before a jury as an important element. The Bill did not stipulate that all trials should be before a jury (since minor offences are in any case tried before magistrates only), but it was clearly designed to ensure that by default this should be the case. And the explanatory notes for the Bill make this plain: jury trial, the notes say, is “of fundamental importance to the UK criminal justice system”.

Dominic Raab was loathed by what I like to think of as the ‘legal cathedral’ – that coterie of MPs, judges, legal academics, practitioners, human rights lobbyists, activists and ‘third sector’ types who set the tenor of public law commentary in Britain. This is for the simple reason that these people monolithically liked the sweeping constitutional changes which New Labour introduced (for reasons which are obvious and which I wrote about earlier on in this post). Ultimately, this led to Raab’s political demise and killed off the Bill of Rights Bill itself. But before that happened, the Parliamentary Joint Committee on Human Rights did get its opportunity to subject the Bill to legislative scrutiny.

As you might expect, this led to an excoriating report, which can be fairly summarised as ‘the only thing wrong with the Human Rights Act 1998 is that it isn’t human rightsy enough’. The Committee recommended that the Bill of Rights Bill not proceed. But along the way it did manage to say something about the aforementioned clause 9, enshrining a right to jury trials in the abortive Bill:

Clause 9 has no obvious legal significance. Its inclusion appears to be largely symbolic and arguably a signal to Strasbourg of the importance of jury trials within our system. … We consider clause 9 to be unnecessary [emphases added].

In a sense, it is understandable why the Committee reached this conclusion. All Clause 9 did was – apparently – restate the law as it existed at that time but with emphasis on the constitutional importance of jury trials. Why, then, bother putting it in the Bill of Rights Bill? And the attitude of the members of the Committee was patronising and contemptuous. They clearly saw Raab as some deplorably retrograde, Brexit-supporting patriot, imbued with a bit of romantic foolishness about a quaint feature of the justice system. ‘Silly Dominic,’ one can imagine them chuckling to each other over their glasses of elderflower cordial in the chamber. ‘He actually thinks the judges in Strasbourg want to abolish jury trials. How Colonel Blimp!’

Raab, though, had seen it coming as long ago as 2009, when his book on human rights, The Assault on Liberty, was published. It contains a section on the threat to trial by jury and a defence of its importance. And his desire to include the right in the Bill of Rights now seems pretty prescient, it is fair to say, in light of what David Lammy is proposing. It’s funny how things turn out.

Dr David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.