16th January 2021
There are news reports that the prime minister has not read the trade and cooperation agreement with the European Union – and nor had the fisheries minister before it was agreed.
And this follows the former Brexit Secretary who once admitted he had not read the thirty-five page Good Friday Agreement – even though that document was of fundamental importance to the shape and outcome of Brexit.
https://twitter.com/EmmandJDeSouza/status/1306319236583903234
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One reaction to these admissions is to say that it is not actually necessary for ministers to read such legal texts – that ministers are usually not specialist lawyers, that such engagement could lead to misunderstandings, and that it would not be an efficient or sensible use of their limited time.
And that it is perfectly reasonable, and indeed preferable, that ministers rely on the advisers to summarise and explain these legal texts instead.
For such reasons, the argument goes, it is not fair to criticise ministers for not reading legal texts for which they are responsible or, in the case of the Good Friday Agreement, fundamental to their ministerial roles.
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Many of those who hold this view are themselves advisers or others who have briefed and summarised such legal texts for ministers and other lay people.
This blogpost avers that this view is not correct and that, for the following three reasons, any minister should be on top of the legal text for which they are responsible or is relevant to their roles, and that ministers should not rely on advisers and their summaries.
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As a preliminary point, however, there is something that this blogpost is not contending.
A minister should not just be left alone with a legal text and be expected to engage with it as an experienced and specialist lawyer.
Even ministers who happen to be lawyers may not be experienced or specialised in the relevant field.
This post is not suggesting that ministers become their own lawyers.
This post instead is putting forward the view about how ministers should approach legal texts as an active (rather than as a passive) client of their legal advisers.
How – in accordance with the old adage – advisers should advise and how ministers decide.
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The first reason is that any intelligent and diligent lay person (that is, a person who is not a specialised lawyer in a relevant field) can engage with a legal text.
No legal text is so obscure – or sacred – that it requires a solemn priesthood of lawyers to interpret its import to the uncouth.
Although parts of some legal documents can look as impenetrable as a computer screen suddenly full of source code, all legal documents will have basic terms, for example: party [x] shall do [y] and if [y] does not happen, then [z] happens instead.
Legal instruments create rights and obligations, and they provide for consequences of those rights being exercised or of those obligations not being fulfilled, and they provide for allocations of risk of certain things happening or not happening.
This is not mysterious stuff – but the very stuff of relationships and powers and conflicts – indeed, it is the basic stuff of politics itself.
And for a minister, a legal text for which they are responsible will set out in hard form these relationships and powers, and how any conflicts are to be resolved.
A minister should therefore engage with such a text and ask their lawyers and other advisers: What does this provision mean? What is the consequence if [a] happens? What is the consequence if [b] does not happen and so on.
In response, any (genuine) expert will have no difficulty in explaining the answer in plain language – or in admitting that something may be missing.
In my experience, the best lay clients are not the ones who pretend to be lawyers – but the ones who will test their lawyers to explain any instrument or other legal text.
Often the lay client, who will usually be approaching the text in a far more practical, street-wise way than any adviser, will spot many possible imprecisions and omissions.
After all, the lay-client is the one who will have to deal with the consequences of how that instrument works in practice.
And this exercise in active engagement can only be done by direct reference to the legal text – not some summary at one or two stages removed.
Like a decent literature student who knows not to rely on York Notes, and a decent law student who knows not to rely on Nutshells, any intelligent and diligent lay client knows there is no substitute to knowing the primary materials.
And again, this is not the lay person pretending to be a lawyer, but them fulfilling their proper role as a client.
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The second reason is that is that summaries are sometimes not reliable texts, notwithstanding the best intentions and professionalism of the adviser who prepares that summary.
This is the nature of summaries: you are relying on another person to identify and set out all the key issues – and such summarisers are not infallible.
But regardless of fallibility, a summary of any legal instrument does not necessarily deal with all the questions a lay client can have when reviewing the terms of that instrument.
And this is because a legal instrument deals (or may have to deal) with dynamic situations where different parts of the instrument can be engaged at once and interact- and any summary is linear.
For example: a thing could happen which is simultaneously a breach of obligation (a), triggers remedy (b), which is subject to a limitation (c), giving rise to process (d), entitling the party not in breach to options (e), (f) and (g).
Different fairy lights can be flashing all at the same time.
No summary can ever equate to having a practical grasp of how a legal instrument works in foreseeable situations.
And this grasp is perfectly possible for an intelligent and diligent lay client – in dialogue with advisers.
This is not to say summaries are redundant – but that they are inherently limited as a means of conveying a robust understanding of any legal instrument.
(And this assumes the summariser being a professional person with relevant experience the best intentions – advisers with their own biases and interests or lack of experience can make the summaries even less of an adequate substitute.)
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The third reason is political.
The doctrine of ministerial responsibility means that it is the minister – and not the civil servant, government lawyer or other adviser – who is responsible to parliament and to the public for decisions.
This means that parliament and the public look to the minister to be the one who makes decisions.
Many ministerial decisions are necessarily made on the basis of summaries – one or two pages of a recommendation in those famous red boxes.
But when the minister is to bind the United Kingdom in an international agreement, with profound consequences for every citizen and business, that duty cannot be offloaded and outsourced to advisers.
A refusal or unwillingness to engage with the primary materials also can lead a minister to wishful-thinking or even denialism – that such-and-such will not really lead to a trade barrier in the Irish Sea and so on.
Such evasions are far less possible when you see things in their black-and-white typed form, and you have had explained to you what the meaning and consequences are of that black-and-white typed form.
There is also, of course, the natural tendency of people with power to rely on others only then to blame them when things go wrong.
Decisions in respect of the United Kingdom’s obligations are not for advisers and officials to make – ministers have to form their own view, for it is that view for which ministers are responsible.
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A minister – even a prime minister – is just as capable as any intelligent and diligent lay client as engaging directly with a legal instrument, and in forming their own understanding of that instrument.
Summaries and reliance on advisors are not substitutes for knowing your way round the primary materials.
And given the doctrine of ministerial responsibility, and the immense importance of many legal international agreements, ministers have a special responsibility to properly understand what they are signing us up to.
Advisers advise, and ministers decide – but some ministerial decisions require far more than reliance on advisers.
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There are two alternative corollaries to this view.
The first is that Government (& Parliament) must do less. Think what you like about Ministers, they are rarely idle. The kind of engagement you envisage in each and every legal instrument for which they have ultimate responsibility would be beyond Minister’s human ability given the current volume of such material generated to undertake Government business.
The alternative is then to have more Ministers, with more to spend time on the legal affairs of state.
Maybe the “third way” is more formal delegation so that the public knows where Ministers are responsible as well as accountable and where they are relying on others to “do” and how it is they control/assure that “doing”.
We have such delegation, already.
I often, as someone working in a Jobcentre, signed off documents in the name of the Secretary of State for Employment, but that delegated authority sprang from an Act of Parliament.
One would hope that the Secretary of State when the Bill was being drafted was aware of the proposed delegations and was cognisant of their final form when the Bill received Royal Assent and thus enactment.
And the force and intent of any such delegated power may not be understood out of context. In other words, the relevant Minister needs to be familiar with the content of the Act, although, not necessarily, with the guidance issued to officials and others to put the Act into effect.
Social Security law comes with guidance and, in due course, with legal judgements relating to the application of the regulations. However, one would expect a Minister seeking Parliament to amend an Act to overturn the consequences of a judgement to be familiar with the reasons for doing so, especially if he or she was the one who had gone ballistic when learning of a judgement they felt weakened the Act.
Changes in benefit conditionality are often highly contentious and Ministers cannot explain and/or defend them, if they do not fully understand them.
“Changes in benefit conditionality are often highly contentious and Ministers cannot explain and/or defend them, if they do not fully understand them.”
This is very true; but only relevant to the present question if ministers WANT to be able to explain or defend them. A more cynical view would be that often they actively want to AVOID deeply understanding the texts they are nominally responsible, for the sake of plausible deniability when things go wrong.
Invariably, Ministers seek to (pointlessly) strengthen conditionality in the pursuit of headlines.
I believe it was James Purnell, when he was the Secretary of State for Work and Pensions who was doing just that when proposing harsher sanctions that caused outrage amongst the usual suspects and favourable comment in certain parts of the media.
A close analysis of the measure revealed that only a handful of claimants in each Parliamentary constituency ran the risk of being subject to the new sanction, if they failed to comply with the rules for receiving Jobseeker’s Allowance.
One assumes that Purnell was at least made aware of that fact so that he might steer clear of being asked about the exact scope of the measure.
Given the number of successful appeals, it seems that a great many documents at Job Centre level are signed off at a level beyond the authority of the signatory.
“Given the current volume of such material generated…”
Why is it given?
Why not take it away?
Least government is best government.
You say, “Least government is best government.”
That is an assertion without any evidential support. Life is gradually getting more complex for all of us, no matter what sphere we are in. We have paper or audit trails now, where such didn’t exist not so long ago.
What is the basis for your assertion? It sounds like hollow political rhetoric that falls apart on minimal examination. Or is it an expression of a wish for something that probably didn’t exist in an imaginary past, and certainly doesn’t exist today?
It’s not often I disagree with your blogs, but:
As an ex civil servant, it was essential for me to understand the detailed legal texts and work closely with the government lawyers. However, very few Ministers would have the time to do this – even the most conscientious ones and ones with a legal background.
I would have expected Ministers to have read and understood relevant sections of the N. Ireland protocol and the political declaration but not the trade agreement.
That said, even if Prime Ministers famous for their grasp of detail have read a Treaty properly, they still may not fully grasp its consequences:
For instance, I think Margaret Thatcher gave away more sovereignty than any UK Prime Minister when the Single European Act was passed inserting Qualified Majority Voting on many issues over national vetoes.
David Williamson – her senior Europe Advisor remembers her walking down the no 10 stairs and saying “I’ve read every single word of this treaty, and I am happy with it”.
She had specifically questioned Article 21 of the SEA – which had extended QMV over matters concerned with health and safety at work – and had been assured this wouldn’t end up with heavy burdens being imposed on small business.
Parliament didn’t help either – it took 6 days to get the SEA through the Commons with hundreds of absentees. Eurosceptic names who would become much better known over the next 30 years contributed – yet still voted for the guillotine motion proposed by Thatcher’s government to cut off the debate early.
As we know, Thatcher became one of the leading campaigners against her own policy.
This must all be right, especially:
‘In my experience, the best lay clients are not the ones who pretend to be lawyers – but the ones who will test their lawyers to explain any instrument or other legal text
‘Often the lay client, who will usually be approaching the text in a far more practical, street-wise way than any adviser [but why advisor in the heading], will spot many possible imprecisions and omissions.
‘After all, the lay-client is the one who will have to deal with the consequences of how that instrument works in practice.’
And it’s no use telling the judge later: ‘my lawyer told me to sign it’. The client – the minister – must take responsibility; and ask question if they don’t understand.
I imagine that an advisor will be more used to what a text intends to say and will read that interpretation, where a lay person will look at the words and interpret them in plain English.
Firstly, it ought to be a requirement that any legal document is accessible to all interested parties and that complexity of language and concepts is kept to the bare minimum (perhaps if lawyers were not paid such large hourly fees, but a price for the complete task…).
This agreement, whilst between the EU and the UK, has an impact on all citizens of both and, critically, will need to be comrehensible to the business community (or their lawyers, at least). It should be comprehensible to anybody wishing to examine it who has a reasonable educational background.
Secondly, it is quite reasonable that Mrs Prentis (the fisheries minister) did not read the document on Christmas eve when it was given to her – there was no time to study such a complex text. It is more scandalous that parliament had to rubber stamp the deal with no time to scrutinise (let alone amend) the text on the same day. Where I find fault with Prentis is that she was not across the detail of the agreement with regards to her responsibility before it was finalised. Was she never consulted (as the relevant minister) on what the industry needed? Did she have no chance to “shape the deal”? This, to me, would be a gross deriliction of duty and a resigning matter, but I imagine only Johnson, Frost and his closest advisers had any input into the deal.
Yes, I agree that the main point is that Mrs Prentis should have been completely au fait with what had been agreed with respect to fisheries whether or not she had actually read the final text on Christmas Eve. If the reality was that she wasn’t, and hadn’t been engaged in the development of the agreement as it was negotiated, it suggests that her position as fisheries minister was more cosmetic than real. (Given the way that Downing Street appears to operate, this would not surprise me.)
It is a fact that those who get away with never doing their homework don’t suddenly start doing their homework. The bare faced deception, distraction and obfuscation techniques that have got Johnson and his cabal this far are now being tested against the harsh reality of a Brexit that few of us really want. Some of those who did will quietly take their gains and slip away from public view.
David, how would you apply this argument to parliamentarians and the legislation they pass? Presumably they have much more limited access to civil service lawyers to support them?
They do not have access to civil service lawyers, correct. MPs do have access to specialists in the House of Commons Library. The Commons Library will produce a briefing on each Bill in time for its second reading that will aim to explain what (most) of the individual clauses are aiming to do, as well as relevant background information and context. Specialists are available to answer individual requests for information also. When Bills are going through Committee stage in the Commons, where the most detailed scrutiny occurs, there are Clerks (House staff) to assist Member’s with queries.
The extent to which this service is relied upon varies from Member to Member.
That notwithstanding, there are three main issues with Parliamentary (particularly Commons) scrutiny of legislation.
One is timing, Bills often only have several days of debate allotted to them. Some recent legislation with significant consequences, such as the Internal Market Bill, as well as implementing legislation for the Withdrawal Agreement & TCA, were passed in a few days. The Commons Library will not have anywhere near enough time to understand, digest, and explain these texts, let alone the Members.
Secondly, in general the detailed scrutiny of legislation is essentially delegated to the Lords. This perhaps leaves some MPs with the sense that they will catch any omissions and errors, and they can remain focused on the more high-level and political aspects of the legislation.
Thirdly, the Government publishes explanatory memoranda alongside Bills and treaties. These documents are supposed to help explain the complexities of the texts, but are often deficient and nugatory. This makes sense if they are accompanying agreements like the TCA for which the civil service would have had little time to prepare for. However, it seems that this task is not given the level of effort and importance it should by the Government.
These points of course, stand alongside the major structural flaw of British Parliamentary democracy – at least from the standpoint of wanting an engaged legislature that is willing to do detailed scrutiny of legislation, and that is the Government is in Parliament and usually is in a majority. The Government controls the Parliamentary timetable and can usually expect to pass most legislation, this is why all the reading and explaining of legislation/treaties in the world, will only have a minimal impact.
There are always plenty of stakeholders just eager to give Parliamentarians their view on the contents of a Bill.
Sometimes, the problem is not just sorting the wheat from the chaff, but actually recognising the chaff.
A point made by Tony Benn, in one of his more lucid moments, during the debate on the Sizewell Nuclear Power Station in the House of Commons on 23rd February 1987.
“We are facing in the nuclear business the most powerful lobby in Britain. I have been in Parliament for many years, including 11 as Minister, and I have never come across a lobby with such power as the nuclear lobby. That lobby has known for years what it wanted. I have mentioned Frank Cousins’ decision to go for Dungeness B, which was an advanced gas-cooled reactor. At that time, the Ministry of Technology wanted the boiling water reactor, which was in the pressurised water reactor family.
In 1974, the brief given to incoming Labour Ministers was that they should get the PWR, which I think was then called the light water reactor. It was essentially the same reactor. The lobby waited and waited until it could get a Government who would agree to that plan. Lord Marshall, my adviser, told me that he had seen the Shah of Iran, who had offered to buy half the British nuclear industry if we would adopt the pressurised water reactor. In other words, if we ordered it, the Shah would also, and so on.
With Westinghouse, the Ministry of Defence—because of its military interests—and the lobby here, the Government and Parliament are facing a lobby in which American interests are very strong.”
There was hardly a dissenting voice to the proposal that was put before him as the Secretary of State, even the trades unions and employers in the nuclear industry were singing from the same hymn sheet.
Benn, for a while, wondered whether or not UK Ministers needed a French style Chef de Cabinet to act effectively as a chief of staff, loyal to their Minister, first, and the Civil Service, second, and committed to providing their Minister with advice as independent as might be humanly possible.
Maybe not reading the treaties/laws just indicates that the Ministers do not think they matter. What is important and real to them, is the spin they can put on things, rather than laws and rules. Laws are just things to be followed, ignored or misrepresented as suits the Ministers in the moment.
They believe In Power, which is different to the rule of law.
The EU trade agreement did not arrive out of thin air. Johnston must have briefed Frost on what he wanted in it. There was much talk of red lines over the last four years. Did he ask – Have you included …..
What happens if x doesn’t follow y?
Are you assuming that the EU will act in such a way and if they don’t what recourse have we?
I suppose leaving everything to the last minute, Christmas Eve for goodness sake, might have put some pressure on the negotiators but it seems that Michel Barnier was on top of his game and knew what x following y really could meant.
D Cummings comment in the Rose Garden that so much passes across the desk of the PM it’s hard for Johnson to keep up, is just so much nonsense. Even when it comes to the really big decisions Johnson has no focus. He wings it every time and time is fast running out.
The last four years of UK politics have been an object lesson in fragility and incompetence for democracies across the world. The implications of Brexit are revealed. The performance in facing the pandemic will unravel and we will all be the poorer.
Thank you for keeping up the daily postings they are much appreciated.
I’m not a lawyer. Legal texts often use “jargon”; ordinary words may have a specific legal meaning. For instance, I have been struck by how often I read that so-and-so “did not know something” when “something” was blatantly obvious to any casual observer. I could only conclude — perhaps wrongly — that “know” in a legal sense meant that you had to have been told yourself and directly, rather like evidence in Court where hearsay isn’t permitted.
If I’m correct, are there other “legal traps” for the unwary where the meaning isn’t quite what non-expert thinks it is?
And that is exactly what the legal adviser is there for.
Of course; but to be able to ask pertinent questions, you have to recognise what you want explained. It’s this recognition that’s going to be so difficult.
Never be shy of asking what might appear to be a stupid question. It might be revelatory. To my mind it is one of the principal duties of a NED in business. How much more crucial for a Minister?
I agree that PMs should read important legal text for which they are responsible. But there is a condition: it has to be possible for them to understand core points in this text – sufficient to be able to ask questions – in a reasonable amount of time. That might not seem a steonh condition. But I’m afraid that when it comes to trade agreements it is.
This post mentions obligations. In fact, most trade agreements contain the same obligations: they are not what is important or much negotiated. It is the exceptions, not mentioned here, where the action is. And it is not just a matter of looking at a section called ‘exceptions’ (though these also exist). To make sense of the whole requires following a cascade of rule, exception, qualification, condition, definition, statement of assumption, etc etc. That’s not even to mention the cross-references to other legal texts.
What about the argument that a PM should at least understand the topics discussed? Well, even here a table of contents is misleading, because cross-references are blank (eg CETA provides for almost no mutual recognition); headings are empty (financial services chapters turn out to be largely blank; the TCA, despite a whole section on the point, does almost nothing for lawyers).
Of course, you could say that the PM only needs to see a small part of this before asking a question. But that is not meaningful reading, which is the predicate of this post.
In short, the post is wrong, in my view, about how easy it is to understand trade agreements – at least in any meaningful way. There is a reason that these are negotiated by large teams of negotiators.
I do not mean, I should say, that it is impossible for a layperson to work it out. Of course it is not. But I do not think that the days required are a good use of the PM’s time. And there is an alternative. Start with policy questions; ask the experts whether those are reflected in the text. Then ask to be shown how this is reflected in the text. Then read it. But to sit down and read the whole thing from front to back … no.
There are many reasons that Prime Ministers do not have Departments of their own.
Such a significant agreement impacting on so many aspects of our economy and lives is surely one.
No individual Minister may be expected to be wholly cognisant of matters falling outside of their remit.
It is, therefore, for the Prime Minister, first amongst equals, to take the lead on such an occasion with a team of advisers and lawyers to aid him in working through the agreement.
Johnson, however, is, when all is said and done, a lazy sod, renowned for getting in his newspaper articles barely on time. That in itself was an inconsiderate act.
And leaving the finalising of the agreement to almost the last minute was a monumental act of inconsideration. But I was forgetting, Dominic Cummings has contempt for stakeholder analysis, he still throws a shadow in government. And, on Planet Johnson there is only one stakeholder in his public and private life, Alexander Boris de Pfeffel Johnson, himself.
He has clearly always liked the idea of wielding the power of a Prime Minister, but shirks the heavy responsibility, the 24/7 burden, that it entails.
To be fair, Corbyn would have been just as bad, but in a different way. He regarded being Labour leader as very much a Monday to Friday, 9 to 5 job, to be fitted in alongside his various pre-existing activities, and, if he worked at the weekend as leader, he felt entitled to a day off in the week in lieu.
And, if he became Prime Minister, he indicated he would keep on his allotment.
Johnson, of course, puts satisfying his own basic needs before those of the country.
Interesting and timely post.
It often feels to me that this willingness to not read the document but to actively tell people you haven’t read it is to allow the minister to say, at least part truthfully, that the treaty meets their stated policy objectives (e.g. no border in the Irish Sea which no British Prime Minister could agree to). To admit you had read it would not allow these claims as it is obvious they are not true.
While I totally agree with the principles you set out, is there not perhaps a simple practical constraint of just not having the time to fully read and analyse a very long legal document?
I don’t know what ministers’ diaries are like, but I suspect putting aside a day to analyse a several hundred page document may not be viable.
Of course, one obvious response to this is not to leave the preparation of such documents to the very last possible minute!
The TPA is a document that will shape the UK for decades to come, and the detail of which will affect the lives of tens of millions of people.
So yes, space in the diary should be found.
In the case of something with the import of the TPA, I agree entirely. Which perhaps reinforces the point of not leaving something so important to the last minute.
To what extent, for things deemed relatively less important, can the PM though rely on delegating “doing the detail” to the Minister responsible; the Minister to a junior Minister, etc.?
“Minister’s diaries are full, Bernard, of conferences, visits, speech making opportunities, to keep them out of our, ahem, harm’s way.”
Time may always be found for the important matters.
Of course, it depends on what a Minister feels is important and/or what their officials believe is important to their Minister.
I recall a Minister having particularly enjoyed a visit to some managed workspace.
Thereafter, for some time, a visit to a managed workspace site was considered a must when drawing up a visit itinerary for him.
The TCA is about the length of War and Peace. I wonder if Johnson would write an essay or an article reviewing the book without reading all of it. (Actually I bet he would.)
I have some sympathy – in my experience, it is rare to find a lawyer who has read the Lisbon Treaty from cover to cover, for example. But most would not pretend they had or give opinions on what it says without doing the research (or getting a junior to do the research for them, and then checking it).
Yes, you want a client who understands what they want and is able to give clear instructions, and engages and responds to the advice from their lawyer. That advice will include explaining in general terms what a document does, what is unusual or “off market”, and where potential risks lie. But I would aver most lawyers dread the client who wants to go line by line though everything. Not because legal drafting is arcane or obscure, and should only be available to a priestly caste. It is just not an efficient use of time.
The very purpose of employing civil servants and government lawyers is to enable ministers to delegate responsibility for the wide range of matters within their portfolio. Subject of course to ministerial direction and reporting back. For example, I would not expect the Chancellor of the Exchequer to write every clause of the Finance Bill, or indeed read it end to end.
On reflection, I suppose one benefit of requiring ministers to read the treaties and regulations, etc, and parliamentarians to read the draft bills, etc, is that very much less of it would be passed. Shorter, more focused legislation, implementing laws that are really needed rather than sending political messages, would be a good thing. About 20 new UK statutory instruments made last week alone; over 1650 last year.
I have no problem with anyone reading legal texts if they have the time and inclination to do so, and with clients checking that their instructions are being implemented properly, but I entirely understand those who trust their lawyer to tell them which parts of a long legal text need their attention and which don’t.
I have much less sympathy with a Linklaters-trained lawyer like Dominic Raab not reading an important 35 page document that falls within the scope of his portfolio. But then he “hadn’t quite understood … [that] we are particularly reliant on the Dover-Calais crossing”. Not the sharpest knife in a canteen of blunt cutlery.
The House of Commons may be an unforgiving place.
Woe betide the Chancellor of the Exchequer, who is not word perfect on the contents of the Budget speech they have just delivered, lest on sitting down, they are faced with a forensic dissection of it by the Leader of the Opposition.
In February 1851, Lord Derby, the Prime Minister, offered Benjamin Disraeli the position of Chancellor of the Exchequer.
Disraeli demurred, stating that the Exchequer was a “branch of which I had not knowledge.”
Derby replied, “They give you the figures.”
When Disraeli sat down, after delivering his maiden Budget, William Ewart Gladstone stood up at the Despatch Box to deliver the response for the Opposition.
To say that Gladstone tore the budget to pieces is an understatement. It was the beginning of the Parliamentary duel between Disraeli and Gladstone.
Derby’s Government fell as a consequence.
Your officials in their box in the House of Commons may pass you notes, but they are no substitute for being on top of your brief.
I think there’s a fundamental point here. However inconvenient it is, Prime Ministers, and I suggest other ministers too, should always try to thoroughly understand what an international treaty implies. That is more important than ordinary acts of parliament, as the scope for amending/correcting later is severely limited. For internal legislation, it’s usually within the power of a PM to amend later if they feel the need. The issue here is around how seriously a Prime Minister takes a treaty. They may be busy, but if they take treaties seriously they must find the time to scrutinise them seriously too.
Fools rush in.
The main concern I have with the Prime Minister’s attitude to the text of the agreement isn’t that he’s made the wrong choice between (a) read it and get advice and (b) rely on summaries, but that he’s quite clearly done neither. If he had displayed a better grasp of at least the general contents, perhaps the journalist wouldn’t have asked him if he’d read it and this whole debate wouldn’t be happening.
The difficulty which I don’t think would be easy to solve even if we had a PM who wasn’t so averse to anything that looks like work is that proper advice about the meaning of the text needs an understanding of EU rules and procedures, so as to predict how they will understand it. And our current government has cut itself off from people who possess that skill.
I always thought it was a gentleman proposes and a lady disposes …
Any way, civil servants respect Ministers (and others) who read their papers and ask intelligent questions.
The degree of disrespect, if not contempt, held by officials for this shower must be prodigious.
The likely successor to Len McCluskey as General Secretary of Unite, Gerard Coyne, fingers crossed, is widely respected by people on both sides of the negotiating table and the aisle, partly because he does his homework.
I have to confess, though, that Coyne is from Birmingham and he was the member of a board I served for a few years (and I know him in other contexts). I like the man.
Coyne read his papers and asked informed questions. Other board members, but not all of them, all of the time, did not and it was very frustrating (and wasteful of time) to point out the answer to a question they posed was in paragraph five on the first page of the relevant board paper.
Time is money, even in the public sector.
There is, I think, a broader point to make here. Boris Johnson attends meetings with world leaders. He will, of course, be attending fewer such gatherings from now on, because of Brexit, leaving him more time for his other Prime Ministerial duties.
That notwithstanding, Johnson will be meeting with the leaders of other nations without an army of advisers and lawyers at his beck and call in the conference chamber or the Gents. A lot may be agreed at the urinal, away from the prying eyes of the media and other meeting representatives.
If your woman or man is not familiar with their papers, how do you guard against them giving away the farm or the fishing quotas in an intimate moment? And Johnson gave away a lot before Christmas without any moments of particular intimacy.
I know there was the dinner with Van Leyen, but we heard a lot about how that went. A poorly prepared Johnson, and it was his fault he was not adequately briefed for the occasion, made an ass of himself and that before we consider the impact of his racist remarks on the negotiations.
As it happens, I sat as a representative, if not a plenipotentiary for the organisations of which I was a member, on the Birmingham and Solihull European Funding Sub Regional Group. I had to know my position inside out, particularly on the rare occasions when I was being held to account at the meeting, a fairly novel position for a civil servant in Birmingham.
I also had to have read the papers of the others at the meeting that had been issued with the agenda. First and foremost, to learn how their content related to the work of my organisation. Did it have a negative, positive or neutral impact on our work or was it something outside of our remit?
My appraisal of the content of the papers shaped my approach to the meeting.
Secondly, it was a matter of courtesy to familiarise oneself with the positions of others, even when outside of one’s remit, and displaying that insight generated goodwill with the chair, minute taker and the others around the table.
Thirdly, one might support an individual to put their case to the meeting more effectively and, thereby, support the chair. More goodwill created, especially if the matter fell outside of what was known to be your remit.
As an aside, I had been well trained in making meetings work and part of the training was about how you might help to make meetings both useful and time bound, even if you were not the chair.
Fourthly, if you have built up some goodwill, you will find it easier than otherwise to get people to listen to your concerns about their proposals. You will, all other things being equal, also find yourself getting their support for proposals you are making.
Fifthly, civil servants are not especially well liked. The fact that the stuffed shirt in the three piece suit and the bowler hat, a tale for another day, had done a sceptic the courtesy of reading their paper and, on opening his mouth, revealed he had not only read it, but understood it, broadly approved of it and was supportive of its aims, went a long way to dispel any animosity in the room.
The art of diplomacy includes seeking advantage wherever it may be found and one may not do that, if one is not well informed.
And then there is the ‘small’ matter of empathy.
This has a particular relevance in the context of negotiations, because if I know the other person’s position, I have read their papers and other briefing, but I am not happy about some (or all) of what they are seeking, I may search for alternative propositions with which I am happy and which one hopes meet their essential requirements. Some times people do ask for more than they really want and will, ‘grudgingly’, settle for less.
I fear David Frost and Johnson may not have grasped that Donald Trump’s Trump: The Art of the Deal is mostly a work of fiction.
And that even busking it requires putting in hours of hard work, of preparation and great dedication to the task in hand.
That is what marks out Prime Ministers like David “I want to sit down with the expert in this policy area and pick their brains” Lloyd George; Winston “one side of well argued A4 to get my attention” Churchill and Clement “democracy means government by discussion, but it is only effective if you can stop people talking” Attlee from many another British Prime Minister.
Mrs Thatcher always read the texts (one might say unfortunately from the point of view of an already exasperated negotiator trying to wind up difficult discussions in Brussels). But then she was a lawyer.
I am no big fan of Margaret Thatcher, quite the opposite, but when the AIDS epidemic began to take a grip, she was not slow in coming forward.
When Norman Fowler, the then Health Secretary, presented her with an AIDS awareness ad campaign, Thatcher, Oxford graduate and research chemist queried the need for such an, as we would say today, in your face campaign.
He said it was necessary.
She said, ok then.
When it has come to Covid-19, Johnson has proven to be lazy, indecisive and dilatory, prey to the influence of mavericks, presented to him as expert advisers.
Someone once described Tsar Nicholas II as a cushion who bore the imprint of whoever sat on him last.
Incidentally, had things worked out differently, Thatcher might well have been known to posterity, solely, as the chemist who gave us the formula for Mr Whippy ice cream.
There is one situation where a Minister will (or should) test lawyers in relation to legislation and that is when they are responsible for piloting a Bill through parliament. They will ask questions of parliamentary counsel, who draft bills, and they may wish to see iterations of the draft Bill, although Ministers may differ in how involved they get in the drafting process.
Isn’t the real problem a lack of proper Parliamentary scrutiny? If the system worked properly there would be sufficient time for Parliamentarians in both Houses to raise queries in relation to particular aspects which concern that individual (or which have been drawn to their attention by other interested individuals) and for the sponsoring Minister to then get expert help to be able to address the query.
The UK’s main admin problem is we still have a monarchy, it may be monarchy-lite but it has all the hallmarks and structures of ‘the king (and courtiers) can do no wrong’. King Boris (and courtiers) can do the job as badly as they please with no come-back.
Brexit was always going to be a rush job because it depended upon the equation 2 – 3 = 5. If anyone was allowed to look at the detail the fact that the answer was wrong would be plain to see. So the job was rushed to the wire, signed in haste and covered up – until now. Now starts the blame game.
What was understood by ministers in respect of the Coronavirus Act 2020 which came into being on the 26th of March 2020. This law has far reaching limitations to individual’s day-to-day lives. How is this law to be understood and interpreted by the Secretary of States, for the various and numerous ways in which the general public are affected?
Is Robert Jenrick able to provide answers to whether, for example, it was legal to move house during the first lockdown or whether in fact for the very most part, citizens were under house arrest? What are therefore the day-to-day consequences of being under house arrest, how does that translate to the individual? If a minister is not able to have a good grasp of the consequences of such legal documents, who does? Surely it is not left to the judiciary to decide what is meant by new legislation, there being no precedent?
Yet, it seems to me know one really knows.