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Voyeurism (Offences) Act (2019) – An example of a legislative process

Background

In 2017 a girl called Gina Martin was at a gig with her friends and family. It was a hot day and she was wearing a skirt. During the gig, two men put a mobile phone between her legs and took a picture of her crotch. This act, which is known as ‘upskirting’, was done entirely without her consent. Martin reported it the the Police, but, to her shock, was told that no law had been broken and the man involved could not be arrested. There is a law of ‘outraging public decency’ but the alleged offence did not meet the criteria. Had the man made any physical contact with her an arrest would be possible under other established sexual offenses. This was clearly an area of law that needed clarity as existing law was not fit for purpose.

Gina Martin (right) with a friend at the festival.

Martin shared her story on social media and many women responded with similar stories. It seemed that upskirting was far more prominent than Martin had been aware. An online petition was launched which reached over 50,000 signatures.

Passage

Wera Hobhouse, a Liberal Democrat MP, took on he issue and put forward a Private Members Bill.

The issue was taken up by Liberal Democrat MP Wera Hobhouse who in March 2018 introduced a Private Members Bill that sought to criminalise upskirting. Normally, Private Members Bills have a very difficult legislative path and are unlikely to pass. However, after reviewing the issue, the Government decided that they would actively support the bill. This made it much more likely that it would pass.

First Reading – The First Reading took place on the 21.06.2018. No debate takes place during the First Reading but the Second Reading was scheduled for June 2018.

Second Reading – During the Second Reading of the bill a controversial moment occurred. Private Members Bills can be stopped in their passage by the objection of just a single MP. To the disgust of many, a Conservative Backbencher called Christopher Chope objected:

Sir Christopher Chope was widely derided for objecting to the Voyeurism (Offences) Bill at Second Reading.


Chope later explained that he was not objecting in regards to the issue of the bill itself. He said that he was objecting to the fact that the bill was being pushed through second reading without a debate. Chope said:

” The government has been hijacking time that is rightfully that of backbenchers. This is about who controls the House of Commons on Fridays and that’s where I am coming from. I actually support the Bills that were before the house. Four of the 26 Bills that fell at the same time were my own. But this is something I have fought for in most of my time as an MP and it goes to the very heart of the power balance between the government and Parliament. The government is abusing parliamentary time for its own ends and in a democracy this is not acceptable. The government cannot just bring in what it wants on the nod. We don’t quite live in the Putin era yet.”

The Second Reading eventually took place on 03.07.2018 and the motion passed without a division.

Committee Stage – The Public Bill Committee Stage took place between 10.07.2018 and the 12.07.2018. The Committee was made up of 18 members, including Christopher Chope. The Committee heard from a number of experts and stakeholders including:

  • Representatives from the Crown Prosecution Service
  • The Mayor of London, Sadiq Khan
  • Professor Clare McGlynn from the Law School of Durham University

During the Committee Stage some amendments were made to the bill. For example, the proposed offence was limited only to when a person over 18 did it for the purposes of sexual gratification. An amendment that required the Director of Public Prosecutions to issue guidance to police forces was also passed.

Report Stage – The Report Stage in the House of Commons took place on 05.09.2018. Debate took place over a number of issues, including whether perpetrators of the offence should be placed on the Sex Offenders Register.

Grand Committee Stage – As the bill was an ‘English and Welsh’ only issue a Grand Committee Stage took place directly after the Report Stage. This meant that only English and Welsh MPs could vote on further amendments. The Committee consented to the Bill with no amendments.

Third Reading – At 19.44 on the 05.08.2018 (the same day as the Report Stage and Grand Committee Stage) the bill had its Third Reading. The Bill was passed on a voice vote as no members objected.

Lords First Reading – The bill had its first reading in the Lords the very next day. Second Reading was set for late October.

Lords Second Reading – The Second Reading took place on the 23.10.2018. Some key points were made. For example, members of the Lords said that the requirement of a motive of ‘sexual gratification’ could leave a loophole if a picture was taken simply for another purpose, such as for financial gain. The bill passed its Second Reading and went to Committee Stage.

Lords Committee Stage – The Lords Committee Stage took place on the 26.11.2018. As usual in the Lords, it was a committee of the whole house who sat. No amendments were placed on the bill.

In the Lords the whole house can sit on Committee Stages.

Lords Report Stage – The Lords Report Stage took place on the 18.12.2018. This was a straightforward affair because there were no amendments to consider from the Committee Stage. In fact, the Report Stage amounted to one speech with no interventions.

Lords Third Reading – The Third Reading of the Bill took place on 15.01.2019. The bill was passed on a voice vote.

Royal Assent – The bill received Royal Assent on 12.02.2019. The bill is very short, as it is limited to the specific offence of ‘upskirting’.

The bill went through all of its parliamentary stages without a division in either house. This is a clear indication that it was accepted that the issue was a gap in the law that needed fixing.

The full bill can be read here:

Results of the Bill

Gina Martin was rightly praised for bringing the issue to public prominence. She could have been like many other young women who have grown up accepting sexual harassment as ‘just the way it is’. However, she was determined to make a difference and with the help of Wera Hobhouse, she was able to do so. In doing so, she may well have prevented other young women going through the hurt and anguish that she was forced to go through.

Upskirting is now a criminal offence that is punishable by up to two years in prison. The most serious offences could also result in the offender being place on the Sex Offenders Register.

What factors determine the primacy of the House of Commons in Parliament?

Parliament is made up of three constituent parts: the House of Lords, the House of Commons and the Crown-in-Parliament. Traditionally, the House of Lords and Crown were the dominant institutions in Parliament. Firstly, this was because Parliament only sat on the say so of the monarch. For example, when Charles I recalled Parliament in 1640 it was the first Parliament to sit in eleven years.

In 1642 Charles I entered the House of Commons and tried to arrest five of its members.

The House of Lords developed from the Medieval ‘Great Council’ that advised the monarch on matters of state. It was made up of nobles and churchmen. The House of Commons developed in the 13th and 14th centuries and was made up of representatives from the boroughs and shires of England.

The House of Lords remained undoubtedly the dominant House of Parliament until the Great Reform Act of 1832. After this, the trajectory of the powers of the two houses altered, with the Commons increasing and the Lords on the decline.

At the State Opening of Parliament Black Rod (the Queen’s Representative) ceremonially has the door of the House of Commons slammed in his face. This is designed to portray the independence of the House of Commons.

Today, although the House of Lords is called the ‘Upper Chamber’, the House of Commons is undoubtedly the dominant house. There are a number of reasons for this:


1. The Parliament Acts

Between 1909 and 1911 a constitutional crisis emerged over the refusal of the House of Lords to pass Chancellor David Lloyd George’s ‘people’s budget’. The crisis eventually ended with the passing of the Parliament Act (1911). This act removed the power of the House of Lords to block legislation and limited it to delaying legislation for two years. In 1949 the delaying power of the House of Lords was reduced to just one year. This means that if the House of Commons passes the same act for two consecutive parliamentary years, they can use the Parliament Act to bypass the House of Lords. The Parliament Act has only been used on four occasions:

War Crimes Act (1991) – This allowed UK courts to try suspected crimes committed on behalf of Nazi Germany during the Second World War.

European Parliamentary Elections Act (1999) – This changed the voting system used in European Parliamentary Elections in the UK from First Past the Post to the D’Hondt method of proportional representation.

Sexual Offences (Amendment) Act (2000) – This equalized the age of consent for homosexual sex with that of heterosexual sex .

Hunting Act (2004) – This prohibited the use of dogs in the hunting of wild mammals (especially foxes).

Even though it has only been used four times, the very existence of the Parliament Act means that the House of Lords is likely to back down rather than risk the Act being imposed by the House of Commons, meaning its existence is extremely significant. 

2. Financial Privilege

An important parliamentary convention between the two houses is that the House of Commons is solely responsible for financial matters. For example, each year the Chancellor of the Exchequer presents his Budget. This outlines how the government is going to spend and raise money for the year. By convention, the House of Lords do not vote against the Budget.

In 2015 the convention was severely tested when the House of Lords voted against a government motion to cut tax credits. They justified this by saying they had voted against a statutory instrument and not a bill and therefore the financial privilege convention did not apply. Although this was technically correct, the House of Lords were clearly pushing constitutional boundaries in their actions.

The then Chancellor, George Osbrone, was incredibly critical of the House of Lords for rejecting the Tax Credits cuts he planned.

3. The Salisbury Convention

The Salisbury Convention dictates that the House of Lords does not vote against any bill that formed part of the government’s election manifesto. The reason for this is that if a bill formed part of a government’s election manifesto it is reasonable to believe that the passage of that bill is the expressed wish of the electorate. The Salisbury Convention was particularly important in the passage of the House of Lords Act (1999). This act removed all but 92 hereditary peers from the House of Lords and would almost certainly not have passed had the convention not existed.

The Salisbury Convention is complicated by the factor of Hung Parliaments. For example, in May 2010 no one party won the election and therefore no party could claim clear mandate from the electorate. A Coalition Government was formed between the Conservatives and Liberal Democrats. To enable this to happen, a Coalition Agreement was made between the two parties that merged their policies to create a compromise agreement. The Coalition Agreement was never put to the voters, so therefore the Salisbury Convention did not apply.

The Coalition Agreement was made after the 2010 General Election and its plans were therefore not subject to the Salisbury Convention.

Currently, the Conservatives are in government due to a Confidence and Supply agreement with the DUP. This is because the Conservatives only won 318 seats in the 2017 General Election and therefore not enough for a majority. Similarly to 2010-2017, the Salisbury Convention cannot be reasonably expected to apply because the governing party has not received a clear mandate from the electorate.

4. Reasonable Time Convention

An important convention that exists in the House of Lords is that Government business will be considered in “reasonable time”. The Government largely controls the business of the House of Commons and can therefore ensure that their business is prioritised. However, the Government’s control of the House of Lords is much less significant. By convention the Lords agree not to unreasonably delay Government business.

5. Secondary Legislation

Secondary Legislation is law created by the Government under the auspices of a bill that has previously been passed by Parliament. Secondary Legislation is essential in the carrying out of government functions as Parliament would not have time to debate and vote on every single governmental issue that needs clarification. For example, Secondary Legislation under the Misuse of Drugs Act (1971) might add a new drug to the proscribed list of substances. The most common form of Secondary Legislation are Statutory Instruments. Around 3,500 of these are passed every single year.

Although Secondary Legislation is scrutinised by the House of Lords, by convention it only votes against it in ‘exceptional circumstances’. This was another reason why the rejection of Tax Credits cuts by the House of Lords in 2015 was so controversial.

6. The Great Offices of State

It is now an accepted convention that the Great Offices of State will be filled from the House of Commons. The Great Offices of State are: Prime Minister, Foreign Secretary, Home Secretary and Chancellor of the Exchequer. 

The last member of the House of Lords to hold one of the Great Offices of State was Lord Carrington. Between 1979 and 1982 Lord Carrington was Foreign Secretary but resigned in 1982 citing the convention of Individual Ministerial Responsibility for failing to recognise the Argentinian threat to the Falkland Islands.

Lords Carrington was the last holder of a Great Office of State to come from the House of Lords.

The last Prime Minister to govern from the House of Lords was the Marquess of Salisbury in 1902. It is now unthinkable that a Prime Minister could govern from the House of Lords because they would avoid direct scrutiny from the representatives of the the people.

7. Representative Function

The fact that the House of Commons contains the elected representatives of the people gives it a greater legitimacy than the House of Lords. Although the House of Lords contains a number of very eminent and respected figures, the fact that their judgement and performance cannot be held to account by the electorate reduces their political mandate. 

How is Britain’s position in the European Union unique?

Britain joined the European Economic Community (now the European Union) in 1973. A referendum was held in 1975 over whether Britain should remain. At that point 67.2% of Britons voted to remain in the E.E.C.

Since Britain’s accession into the E.E.C the organisation has changed dramatically. With the signing of the Maastricht Treaty in 1993 the E.E.C became the European Union which we would somewhat recognise today.

The European Union is not a simplistic organisation. It is incredibly complex. CGP Grey explains some of the complexities of the European Union in this excellent video:

A number of countries currently want to join the European Union. These include Turkey, Bosnia-Herzegovina and Albania. In order to join the European Union a candidate state has to meet a number of conditions. Each state:

  • Must be a demonstrably stable democracy. They must respect Human Rights and the Rule of Law.
  • Must have the consent of other EU Members in order to join.
  • Must show they are able to take on all the responsibilites of EU Membership. These include accepting the single currency (the Euro) and committing to free movement of people and goods.
  • Must accept all EU Rules and Regulations as they were at the time of their accession.

What is interesting in the case of Britain’s membership of the European Union is that Britain’s current legal status within the EU would not meet these conditions. This is because Britain has negotiate a number of ‘opt-outs’ from the expected conditions of EU membership:

Schengen Agreement

The Schengen Agreement creates an area in which citizens can travel without having to pass through customs and without having to produce a passport. Of 28 current EU Members 22 are members of the Schengen Area. Britain argued that, as an island, Britain was in a unique position that needed special consideration. Britain therefore opted out of the Schengen Agreement.

Countries in blue are members of the Schengen Area. Switzerland and Norway our members of the Schengen Area despite not being in the European Union.

Economic and Monetary Union

As part of the Maastricht Treaty in 1993 it was agreed that a Single Currency would be introduced in the European Union. In 1999 the Euro was introduced and 19 of 28 EU Members currently use the Euro as their currency. The New Labour Government of Tony Blair were keen for Britain to adopt the Euro and promised a referendum on the issue. However, the policy was clearly unpopular and the party backed down over the issue.

Countries in blue use the Euro.

Area of Freedom, Justice and Security

The Area of Freedom, Justice and Security are a set of home and justice policies that all members sign up to implement. For example, members would be required to implement the same border controls and asylum policies. Britain has an opt-out for the full quota of policies, but does participate in some areas.

Countries in blue fully participate in the AFSJ.

Charter of Fundamental Rights

The Charter of Fundamental Rights was signed in 2000. It codifies certain political, social and economic rights of citizens across the European Union. It also gives EU Court’s the power to strike down national laws that do not comply with the charter. Britain has an opt-out from the Charter, meaning EU Courts cannot overturn UK Statutes, meaning Parliament remains sovereign in the UK.

Countries in blue are fill signatories to the Charter of Fundamental Rights

In addition to these opt-outs Britain has a rebate that reduces the amount of money that Britain contributes to the EU Budget each year. The rebate was negotiated by the government of Margaret Thatcher in 1985 and sees a net reduction of 66% in the amount that Britain is expected to pay into the EU Budget.

Margaret Thatcher claimed a major political victory by winning a rebate for Britain’s contribution to the EU Budget.

As the Brexit Date of 29th March 2019 approaches an important consideration needs to be taken into account. If Britain in the future decides to rejoin the European Union, it will not be on her current terms. Britain will almost certainly be forced to adopt the Euro, the Schengen Agreement, the Charter of Fundamental Rights and the Area for Freedom, Justice and Security. In addition, Britain will be expected to pay the full quota of membership fees and would get no rebate on this amount.

If Britain does leave the European Union as planned, it is not something that can be fully reversed in the future. Britain, like the countries currently applying for membership, would have to fully comply with all the normal conditions of membership.

Should the Independent Group’s MPs have abided by the ‘Carswell Convention’?

Since the EU Referendum in June 2016 rumours that a new anti-Brexit centrist political party was soon to emerge have been consistent. Commentators were proved right when on the 18th February 2019 seven Labour MPs resigned and formed the new ‘Independent Group’.

The 11 Independent Group MPs

The founding members were: Luciana Berger, Ann Coffey, Mike Gapes, Chris Leslie, Gavin Shuker, Angela Smith and Chuka Umunna. They were joined the very next day by Labour MP, Joan Ryan.

Two days later on the 20th February the group was joined by three Conservative MPs: Anna Soubry, Sarah Wollaston and Heidi Allen. L

This new Independent Group now has 11 members. This means it is equal in representation to the Liberal Democrats and is the joint fourth largest group of MPs.

One criticism of the new grouping is that they did not resign their seats in Parliament upon their decision to join the Independent Group.

In recent years there has been an emerging convention in the UK Parliament that is known as the Carswell Convention. This dictates that should an MP decide to change political parties, they should resign their seat in Parliament and force a by-election which they can then decide to run in. The logic behind the convention is that if an MP has been elected on the manifesto of a political party then their constituents should be able to confirm their decision to move to a different political party.

MPs ‘crossing the floor’ is not a new phenomena. Winston Churchill left the Conservatives to join the Liberals in 1904 before returning to the Conservatives in 1924.

The Carswell Convention is named after former MP, Douglas Carswell. In August 2014 he left the Conservatives to join UKIP.

He resigned as a Member of Parliament, thereby forcing a by-election in his constituency of Clacton. He then comfortably won this by-election and in doing so became the first member of UKIP to be elected to the UK Parliament.

In September 2014 Conservative MP Mark Reckless followed Carswell’s lead. He joined UKIP and resigned, he then won the the subsequent by-election.

Mark Reckless became the second Conservative MP to defect to UKIP in 2014.

Given the precedent created by these events, members of the Independent Group have been heavily criticised for not abiding with the convention that they should resign their seats. Shadow Chancellor of the Exchequer, John McDonnell said:

“If you splinter of and are going to another political platform have a responsibility to go back to the electorate “

So why haven’t the Independent Group called by-elections to abide by the newly established convention?

  1. They argue that their values haven’t changed, but their parties have.

Members of the Independent Group say that they have made their decision to leave their former parties reluctantly. They say that they have done so because their parties have abandoned the centre-ground of UK Politics. For the ex-Tories, they believe that the party is now being run in the background by the right-wing European Research Group. For those who are ex-Labour, they lament the radical shift to the left that has been bought about since Jeremy Corbyn became Labour Leader. They therefore argue that it is their parties who have changed their position, not them, and they are comfortable that they will still represent their constituents as their constituents wanted when they were elected in June 2017.

2. The Independent Group is not a political party

The Independent Groups is not a registered political party. They do not have a leader (although Chuka Umunna has been elected as spokesman). As the MPs who have defected have not join another party, and therefore technically sit as Independents, the Carswell Convention does not apply. Many MPs have resigned to sit as Independents before and there has been no call for them to call a by-election. For example, Ian Austin resigned from the Labour Party to sit as an Independent on the 22nd February 2019. However, as he does not ‘caucus’ with the Independent Group the calls for him to resign as an MP have been virtually non-existent.

3. It would be electoral suicide

Perhaps the most important reason why the Independent Group MPs have not forced by-elections is because it would be electoral suicide. Britain’s First Past the Post system is notoriously brutal for third parties. The chances of even half of the Independent Group retaining their seats if by-elections were called is slim. Some, like Luciana Berger, have extremely healthy majorities (29,466) and may hold on. Others, like Angela Smith (1,322) would be obliterated in a by-election.

It remains to be seen what impact the Independent Group will have in UK Politics. However, it does show a clear lesson about conventions in the UK constitution. As quickly as they emerge, they can be ignored. For many, this adds weight to the arguments that Britain should transition to a fully codified constitution.


What is the Special Prosecutor and why are they important?

A Special Prosecutor is an individual who is appointed to investigate potential wrongdoing within the executive branch of the Government. They are appointed if an investigation is required into the President or another member of the Executive Branch. Federal criminal investigations are usually carried out by the Federal Bureau of Investigation (FBI). The FBI is ultimately overseen by the Attorney-General and the President. It would therefore be a clear conflict of interests for the FBI to investigate the Executive Branch.

The use of the Special Prosecutor is a clear example of oversight of the Executive.

The term has become an important one in current U.S Politics because in May 2017 former FBI Director, Robert Mueller, was appointed as Special Prosecutor to investigate potential Russian interference into the 2016 US Elections.

Mueller

Former FBI Director, Rober Mueller, is current leading an investigation into Russian interference in the 2016 Election.

There have been a number of important investigations carried out by Special Prosecutors in the United States:

The Watergate Affair

In June 1972 five men were arrested after breaking into the Democratic National Committee Headquarters in the Watergate complex in Washington D.C. It soon became apparent that this was not a normal burglary attempt. Some of the burglars had links to the administration of President Nixon and questions were increasingly raised as to whether people in the administration had known of the break-in.

As a result of this, Archibald Cox was appointed as a Special Prosecutor to look into the Executive Branch’s potential involvement in the Watergate Scandal. Cox had previously been Solicitor-General of the United States and was a well respected figure in Washington.

Archibald Cox was the first Special Prosecutor in the Watergate Scandal

In 1973 Alexander Butterfield, a White House Staffer, told a Senate Committee that the White House has a secret recording system which recorded all conversations held in the Oval Office. As Special Prosecutor, Cox subpoenaed these tapes. President Nixon tried to withhold the tapes, claiming executive privilege. The issue went all the way to the Supreme Court which ruled 9-0 in Nixon vs. United States (1974) that Nixon must give up the tapes.

As a result of this, Nixon ordered the Attorney-General to fire the Special Prosecutor. The Attorney-General refused and resigned. Nixon then ordered the Deputy Attorney-General to fire Cox. The deputy also refused and resigned. These events were known as the Saturday Night Massacre and weakened Nixon, as it appeared that he was trying to obstruct justice.

This clip from Oliver Stone’s 1995 Stone biopic shows Richard Nixon (played by Anthony Hopkins) ordering the firing of Cox, despite the advice of his staff:

Nixon later became the first US President to resign. He resigned on the 9th August 1974, knowing he would almost certainly have been impeached if he stayed in office.

The Whitewater & Lewinsky Scandals

In 1994 a Special Prosecutor named to investigate the Whitewater Scandal. It had been alleged that President Bill Clinton and the First Lady, Hillary Clinton, had been involved in illegal property developments in their home state of Arkansas. Although many questions were asked, there was seemingly little evidence of criminal conduct by the Clinton’s.

However, the Whitewater investigation would soon morph into something that would seriously damage Clinton. For many years Bill Clinton had been accused of sexual misconduct and a number of women had attempted to sue him. In 1998 Clinton was being sued by one of these women, Paula Jones. A White House intern called Monica Lewinsky said in an affidavit that she had not had a sexual relationship with Clinton. However, Lewinsky had previously told a colleague called Linda Tripp that she had been in a sexual relationship with him. Tripp had recorded conversations with Lewinsky in which she admitted this. Tripp forwarded these tapes on to Ken Starr, the Special Prosecutor.

Monica Lewinsky confided in a friend about her affair with President Clinton – unaware that her ‘friend’ was recording everything that she said.

“Clinton initially denied any relationship with Lewinsky. Famously saying “I did not have sexual relations with that women, Miss Lewinsky”:

However, he was subpoenaed to testify in front of a Grand Jury. Lying to the Grand Jury would have been perjury. In the most awkward set of questions ever faced by a US President, he gave legalistic responses when asked about the most intimate details of his sexual activities:

Later, Clinton was impeached. Importantly, he was not impeached for having an affair. He was impeached for obstruction of justice and perjury. He was acquitted in the Senate, but the scandal seriously damaged his second term as President.

Clinton did later admit to having an improper affair with Lewinksy:

Although it was not what he was meant to be investigating there is no doubt that without the existence of the Special Prosecutor the Lewinsky Scandal would not have taken place.

The Russia Investigation

After allegations that Russia had attempted to influence and manipulate the US Elections that resulted in Donald Trump becoming President, a Special Prosecutor (called ‘Special Counsel’) was appointed to investigate the issue.

One of the reasons that a Special Counsel was appointed was because of a series of events in 2017 that saw Donald Trump fire the FBI Director, James Comey. The FBI had been investigating potential Russian interference with the election and it appeared, to some, that Trump had been trying to obstruct an investigation that could find negatively against him. This was because it had been reported that Trump had suggested that Comey stop an investigation into the National Security Advisor, Michael Flynn. Comey had categorically refused.

The firing of FBI Director, James Comey, was a key catalyst for the appointment of a Special Counsel.

Since then the Special Counsel, Robert Mueller, has been conducting an investigation into Russian interface and the Trump Administration. The full report has yet to be released, but there are rumours that it will appear soon.  Yet, already, the investigation has had a huge impact. A number of individuals have already been prosecuted as a result of the Special Counsel investigation. Some of the most prominent are:

George Papadopoulos (Foreign Policy Advisor to the Trump Campaign) – Pled Guilty to one count of giving a false statement to the FBI over Russian involvement in the election. He was sentenced to 14 days in prison.

Rick Gates (Deputy Campaign Manger for the Trump Campaign) – Was charged with multiple financial offences. He was cleared of all charges.

Michael Flynn (Former National Security Advisor under President Trump) – Was charged with one count of giving a false statement to the FBI. He is yet to be sentenced.

Michael Flynn resigned as National Security Advisor having lied to the FBI about his contact with Russian officials during the 2016 Election.

Roger Stone (Political Advisor to Donald Trump) – Was charged with numerous counts of obstruction of justice and witness tampering. His trial is yet to take place.

Michael Cohen (Former personal lawyer to President Trump) – Was charged with giving a false statement to a Senate Committee. He was sentenced to three years in prison.

On 27th February 2019 Michael Cohen gave explosive testimony to Congress in which he called Donald Trump a ‘racist’ and a ‘liar’

After two years Mueller is now due issue his full report on Russian interference in the 2016 election. Throughout he has been notoriously quiet about anything in public. No-one truly knows what the result of the investigation will be.

The Special Prosecutor has shown again and again that their scrutiny of the Executive Branch can have a major political impact. A Special Prosecutor was a catalyst for the resignation of Richard Nixon, a Special Prosecutor very nearly bought down President Clinton and a Special Prosecutor may yet have a significant impact on the presidency of Donald J. Trump.

What is the ‘Invisible Primary’ and why is it significant?

As of 25th February 2019 eight candidates have declared that they will be seeking the Democratic nomination for the presidency of the United States. Among them are Bernie Sanders (who finished second in the 2016 Democratic Primary) and Elizabeth Warren, someone who has long been tipped to make a run for the White House. Other prominent candidates may still declare, including former Vice-President Joe Biden.

Even aged 77 is it time to ‘Feel the Bern’ again?

On the Republican side no-one has openly declared that they will challenge the incumbent, President Trump. It is unusual, but not unprecedented, for a sitting President to face a primary challenge.

The first primary election of the 2020 campaign is the Iowa Caucus on the 3rd February 2020. So why so much activity now? The reason is that America is now well and truly into what is known as the ‘invisible primary’.

The date of the next Presidential Election in the USA is guaranteed in law. It takes place every four years on the first Tuesday that follows November 1st. This is different to the UK. Traditionally, the timing of a General Election was decided by the Prime Minister, as long as it was held within five years of the last one. In 2011 the Fixed-Term Parliaments Act was passed, setting the date of the next election as five years after the last. However, the act allows for early elections under two circumstances:

  1. If the Government loses a motion of no confidence in the House of Commons and cannot win back that confidence within fourteen days.
  2. If two-thirds of members of the House of Commons vote in favour of an early General Election.

As Theresa May showed in 2017 (with Parliament voting 522-13 for a fresh election), the Fixed-Term Parliament’s Act is not a significant hurdle to the calling of any early election.

The fact that the date of the next U.S Presidential Election is guaranteed means that the moment a President is sworn in attention turns to the next election cycle. The period before the official primary season starts is known as the ‘invisible primary’. It is also sometimes called the ‘Money Primary’. During this period candidates will do a number of things in order to set themselves up for a presidential run:

1 – Form and Exploratory Committee

One of the first things that a potential candidate will do is form an exploratory committee. This is a committee to explore whether a run for the presidency is viable. Candidates can test their ideas in focus groups and informally test what kind of support they are likely to receive from prominent backers. Forming an exploratory committee also allows a candidate to beginning raising money in line with Federal Election Committee guidelines.

2 – Build a Campaign Team

If a run for the presidency is possible a candidate will then begin to build their campaign team. Presidential Campaigns in the United States are huge machines. At their peak, there are thousands of staff, many who are volunteers. In the early invisible primary, however, a candidate will look to fill out the senior positions in the campaign:

Campaign Manager – This person is responsible for the running of the campaign. They will be ultimately responsible for fundraising, spending and strategy. They will also often become a visible media presence.

Chief Strategist – Most campaigns will have an individual whose goal is to focus on the overall message of the campaign and how to win the support of voters. Unlike the Campaign Manager, who also has to deal with the logistical aspects of the campaign, the role of the Chief Strategist is to focus fully on how their candidate can win the the most votes.

David Axelrod was Chief Strategist for Barack Obama in 2008 and went on to become a Senior Advisor to the President whilst he was in office.

Media Strategist – A campaign will have a media strategist whose main role is to try to best exploit the media in order to get the candidate’s message heard and understood.

Chief Pollster – There are a number of independent polling agencies in the United States, like Gallup or the Marist Institute. However, campaigns will also put their own polls out in order to test their message and look for voter feedback. They may need to refine their polls to look at the impact of their campaign on a certain group of people within a certain area.

Finance Director – The Finance Director is responsible for fundraising and managing the expenditure of the campaign. They also have to ensure that all financial aspects are compliant with Federal Election Commission regulations.

Press Secretary – Behind the candidate themselves the Press Secretary is the most visible person on the campaign. Their job is to deal directly with the press on a daily basis.

3 – Make a formal announcement

When a candidate believes they are capable of mounting a viable campaign for the presidency they will formally announce their candidacy. Candidates will usually do this in a setting that has personal or political significance to them and will almost always make the announcement in their home state. For example, in 1968 Robert F. Kennedy made his announcement for the presidency on the same spot that his brother, President John F. Kennedy, had made his announcement in January 1960.

The announcement will usually be part of a formal speech, the first of many in a campaign. It is rare for candidates to make firm policy promises at this stage, but it is a chance for them to introduce themselves as a candidate and talk about their character and temperament.

Excerpt from Barack Obama’s announcement speech:

” All of us know what those challenges are today: a war with no end, a dependence on oil that threatens our future, schools where too many children aren’t learning, and families struggling paycheck to paycheck despite working as hard as they can. We know the challenges. We’ve heard them. We’ve talked about them for years.

What’s stopped us from meeting these challenges is not the absence of sound policies and sensible plans. What’s stopped us is the failure of leadership, the smallness — the smallness of our politics — the ease with which we’re distracted by the petty and trivial, our chronic avoidance of tough decisions, our preference for scoring cheap political points instead of rolling up our sleeves and building a working consensus to tackle the big problems of America.”

4 – Raise LOTs of money

When a candidate has formally declared for the presidency they need to immediately begin raising money.  One of the reasons for this is the sheer amount of money needed to run for the presidency. In 2016 Hillary Clinton spent $768 million on her failed presidential run. Candidates can raise money in a variety of ways:

Individual Contributions – Individuals will be encouraged to donate to political campaigns. There are limits on these contributions that are set by the Federal Election Committee (FEC). An individual can donate a maximum of $2,800 to a particular campaign in a particular year.

Bernie Sanders presidential campaign in 2016 was famous for relying heavily on small donations from a large number of supporters. In his primary bid in 2016 he raised $259 Million Dollars. Sanders became the first candidate to reach one million individual donors and, of these, the average donation to his campaign was $27 dollars. This had a political dividend for Sanders too. Sanders had been a long-time critic of the system of US Campaign Finance and had called the Supreme Court’s decision in Citizens United v. FEC “absurd”. The fact that Sanders raised so much money from small donations backed up the narrative that his campaign was a grassroots insurgency against the established Washington insiders.

Barack Obama joked to Bernie Sanders that he “looked like a million bucks, or to put it in terms you will understand, you look like 37,000 donations of $27 dollars each”

PACS – Political Action Committees (PACS) are a key way that presidential campaigns are funded. PACs are organisations that collate money from its members before transferring it to political campaigns. Individuals are limited on how much they can contribute to a PAC. PACs might represent Trade Unions, Industrial Sectors, Individual Companies. There are limits on how much money a PAC can give to a particular campaign. However, they can spend unlimited money independently of a candidate.

Super PACs – A Super Pac is a PAC without its key constraints. There are no limits on the donations that a Super PAC can receive from an individual, business or interest group. The main restraint, however, is that no money can be given directly to a political campaign. However, Super PACs will spend their money in a way that they know will benefit their chosen candidate. For example, in 2015 a Super PAC called ‘Right to Rise’ paid for a television advert featuring former President George W. Bush. At the time, Bush’s younger brother Jeb was running for the Republican nomination. George W. Bush made no mention of his brother, thereby not breaking any rules, however, it was clearly an advert in support of Jeb’s campaign. In total, Right to Rise spent $86 Million supported Jeb Bush’s run for the White House.

The Right to Rise Super Pac did not help Jeb Bush as much as they would have liked. Despite being the early favourite and spending $130 Million Dollars, he won only three delegates and dropped out of the race after the South Carolina Primary.

Dark Money – This refers to money that is untraceable. By its very nature, not much is known about it. However, it is estimated that over $100 Million Dollars of Dark Money was spent in the 2018 Election. Clearly, there is a significant threat to democracy if it is not known who is financing and influencing political candidates.

5 – Maintain or Abandon a Run

The fact that a candidate has completed all of these steps is no guarantee that they will even make it to the first primary or caucus in the election cycle. Before the first primary it is likely that many candidates will drop out. For example, Governor Rick Perry (Governor of Texas) withdrew from the Republican Primary five months before the first primary was held. Despite abandoning his campaign before the first vote, Rick Perry spent $17 Million Dollars!

Governor Rick Perry withdrew from the Republican contest before a single vote was cast.

The Invisible Primary is a result of three key things: the certainty of an upcoming Presidential Election, the importance of being able to finance a campaign and the open way in which party’ choose their candidates to become the President of the United States.

Brexit and Collective Responsibility

A key convention in UK Politics is that of Ministerial Collective Responsibility. This convention dictates that regardless of whether Ministers agree or disagree with government policy in private, in public, they must support it. If they cannot bring themselvesto do this, the convention dictates that they should resign from the government. The doctrine applies to all members of the government and has now even been codified by its inclusion in the Cabinet Manual.

Robin Cook famously resigned from the Government in 2003 over the British Invasion of Iraq

Historically, there have been many examples of the doctrine of Collective Responsibility being invoked. There have also been a number of issues that have saw the doctrine being followed. A good example of this is the Iraq War which saw Robin Cook and Clare Short both resigning from Tony Blair’s Cabinet and citing Collective Responsibility as their reason for doing so.

Michael Gove and Boris Johnson were key figures in the Leave Campaign

However,  no issue has seen more resignations under the doctrine of Collective Responsibility than Brexit. When he was Prime Minister David Cameron anticipated the divisiveness of the issue and decided to suspend Collective Responsibility during the EU Referendum Campaign. It was this that allowed Ministers like Michael Gove, Andrea Leadsom and Chris Grayling to campaign for Britain to leave the European Union despite David Cameron leading the Remain Campaign.

However, after the referendum result, and the formation of Theresa May’s Cabinets, Collective Responsibility is back in force. Although there were always going to be disagreements in Cabinet over Brexit, Ministers have been expected to sell Theresa May’s vision of the direction it should take.

However, many Ministers have found this extremely difficult to do. As of Sunday 17th November 2018, there were sixteen members of the Government who had resigned from the position over Brexit.

Secretaries of State (Members of the Cabinet)

David Davis – Resigned 8th July 2018

David Davis – David Davis was appointed to the newly founded Cabinet position of Secretary of State for Exiting the European Union (Brexit Secretary). During the referendum campaign he had campaigned for Britain to leave the European Union. As Brexit Secretary it was his job to negotiate with the EU about the terms of Britain’s Exit. It quickly became clear that he was being largely sidelined by Theresa May and when she announced her Chequer’s Plan he decided he could no longer stay in post.

Resignation Letter Quote:The Cabinet decision on Friday crystallised this problem. In my view the inevitable consequence of the proposed policies will be to make the supposed control by Parliament illusory rather than real. As I said at Cabinet, the “common rule book” policy hands control of large swathes of our economy to the EU and is certainly not returning control of our laws in any real sense.”

Boris Johson – Resigned 9th July 2018

Boris Johnson – Theresa May made Boris Johnson Foreign Secretary when she became Prime Minister. He had campaigned to leave the European Union and was seen my many to have been the most decisive voice in the Leave campaign. In his role as Foreign Secretary Johnson should have been taking a lead role in negotiating Britain’s Exit from the EU. However, it was clear that he never really agreed with the direction Theresa May was pursuing. He had already pushed the boundaries of Collective Responsibility many times before his eventual resignation. For example, he had written  a column for the Daily Telegraph in 2017 in which he laid out a vision of Brexit that seemed different to that of the Prime Minister. Johnson finally resigned on the 9th July 2018 after stating that he could not accept the Prime Minister’s Chequers Plan.

Resignation Letter  Quote:Brexit should be about opportunity and hope. It should be a chance to do things differently, to be more nimble and dynamic, and to maximise the particular advantages of the UK as an open, outward-looking global economy. That dream is dying, suffocated by needless self-doubt.”

Dominic Raab – Resigned 15th November 2018

Dominic Raab – Appointed Brexit Secretary after the resignation of David Davis, Raab was in post for little more than four months. He decided to resign the morning after Theresa May announced her Draft Withdrawal Agreement with the EU. Raab had always held reservations over the direction of the negotiations and decided not to stay in the Cabinet and support the Prime Minister’s agreement with the EU. 

Resignation Letter  Quote: I cannot reconcile the terms of the proposed deal with the promises we made to the country in our manifesto at the last election. This is, at its heart, a matter of public trust.”

Esther Mcbey- Resigned 15th November 2018

Esther McVey – McVey became the second Cabinet Member to resign on the morning after Theresa May’s Draft Agreement with the EU was published. McVey is a staunch leaver and had long harboured doubts over the direction the government was taking. Her position was not helped by problems she had in the Department of Work and Pensions after it was perceived that she had lied to the House of Commons over Universial Credit. McVey was clearly not a fan of Theresa May and would not stand by and accept a Brexit deal that she did not agree with.

Resignation Letter  Quote: I cannot defend this, and I cannot vote for this deal. I could not look my constituents in the eye were I to do that. I therefore have no alternative but to resign from the Government.”

Ministers of State

Shailesh Vara – Reisgned 15th November 2018

Shailesh Vara – Vara was one of four resignations the day after the Draft Withdrawal Agreement was published. Vara had been appointed Minsiter of State for Northern Ireland in January 2018. He resigned on the day that the Draft Withdrawal Agreement was published.


Jo Johnson – Resigned 9th November 2018

Jo Johnson – Jo Johnson, the younger broter of Boris, is one of the most interesting resignations from Theresa May’s ministerial team. This is because Johnson was a firm remainer. However, he resigned as a Minister for Transport because he believed negotations had failed and because he wanted to be able to campign for a second refendum.

Guto Bebb – Resigned 16th July 2018


Guto Bebb – Bebb was Minister of Procurment in the MoD until the 16th July 2018 when he resigned following the publication of the Drat Withdrawal Agreement.




Other Members of the Government


Andrea Jenkins – Parliamentary Private Secretary to the Ministry of Housing, Communities and Local Government. Resigned 25th May 2018.


Chris Gree – Parliamentary Private Secretary to the Department of Transport. Resigned 8th July 2018. 


Steve Baker – Parliamentary Private Secretary to for the Department for Exiting the European Union. Resigned 9th July 2018.


Robert Courts – Parliamentary Private Secretary to the Foreign Office. Resigned 15th July 2018.


Scott Mann – Parliamentary Private Secretary to the Treasury. Resigned 16th July 2018.


Rehman Christi – Vice-Chairman of the Conservative Party. Resigned 15th November 2018.


Ranil Jayawardena – Parliamentary Under-Secretary of State for the Department of Work and Pensions. Resigned 15th November 2018.


Anne-Marie Trevelyan – Parliamentary Private Secretary. Resigned 15th November 2018.

Suella Braverman – Parliamentary Under-Secretary of State for Exiting the European Union. Resigned 15th November 2018.