Month: December 2021

Boosterism about boosters

13th December 2021

At least we have something new in law and policy to talk about.

No doubt as an attempt to protect his personal political position, our current Prime Minister made a rare broadcast last night to announce an ambitious new ‘target’ for take-up of the vaccine booster.

Of course, there had been no consultation with health service providers, still less any preparation.

And this is not a surprise, for our Prime Minister is interested in public policy only when it helps him with his political career.

It is hard, if not impossible, to think of any sincere view on public policy that the Prime Minister holds.

Public policy simply provides Boris Johnson with the means for obtaining and retaining political power – be it Brexit or Covid.

Whatever policy position he can adopt so as to get through the political predicament of the day (or hour).

And so – inevitably – we end up with boosterism about boosters.

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The Parable of the Prime Minister’s Curtains and the Mysterious Black Bin Bag

12th December 2021

From time to time, if you are lucky and alert, you can watch urban legends form in real time before your eyes.

In the last twenty-four hours we have seen the creation of a new conspiracy theory, to go with the likes of the moon landing hoax and Piltdown man.

It began with a tweet and a picture:

It is a good, good scoop.

The picture, of course, is not in and of itself incriminating.

Three people, including the Prime Minister, on a Zoom or similar call.

The Santa hat and the tinsel are indicative of it perhaps not being an especially earnest work call.

It is unlikely, for example, that the other call participant was, say, Vladimir Putin.

But it is the context which makes the picture significant.

If the three participants were not together for work purposes at the time of last Christmas then it would seem to have been an unlawful gathering.

And if, instead of Vladimir Putin’s stern unsmiling face, the Prime Minister was looking at a screen full of quiz participants – his own staff – crowded around their monitors, then his staff would seem to be in unlawful gatherings too.

When the Prime Minister said ‘all the rules have been followed’ he did not mention they were the quiz rules.

If these contextual points can be made out then this could be a difficult situation for the Prime Minister and his staff.

*

You would think this was bad enough – and sufficient to satisfy those who are hostile to the Prime Minister and distrustful of him.

But no.

The picture also, it was contended, showed something even worse, if you looked carefully.

Looked hard, like one would look at a slice of toast to maybe see a somewhat bewildered face of Jesus.

In the top-left corner, we were told, there is black bin liner.

And if there is a black bin liner, it followed, it would have to be masking a security camera.

But.

There is no black bin liner.

And under the lack of a black bin liner there is no security camera.

What you can see is a pelmet – in effect upholstery for curtains.

You can see this in these pics:

This, of course, did not prevent a number of usually sensible people from tweeting about a black bin liner hiding a security camera – members of parliament, journalists, critical thinkers.

As well as all those who, well, would also tweet without any hesitation in other situations about ‘dead cats’ and ‘false flags’.

What all this tells us is a couple of things,

The first is the truth that many people will want to see a deeper conspiracy when no conspiracy needs to be posited.

The second is that we have a Prime Minister for whom many will believe it is plausible is capable of adopting the tactic of putting a black bin liner over a Downing Street security camera.

The number of people ready to believe this of our current Prime Minister is in and of itself significant.

(Indeed, some reading this blog post would be ready to believe if there were more compelling evidence.)

But as this blog averred recently, we have an arrogant government that has not even got the basic competence to be deceitful and cunning.

Even if there were a security camera in Downing Street instead of a pelmet, Johnson would probably not have cared anyway.

This is because he would (then) have undoubtedly not even thought that it could possibly matter – at least to him.

So what?

Well.

And now we come to the real political significance of the picture.

For what is important for what happens next to the Prime Minister is how freely this information is now being given to the press by his own staff.

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Boris Johnson is less interesting in and of himself, than for what his premiership tells us about United Kingdom constitution

11th December 2021

Many people – including you reading this post – will have strong opinions about the prime minister Boris Johnson.

And because he is such a distinctive politician, it is tempting to attribute all the current political woes to his actions and inactions.

To an extent that is a fair approach – for almost every political problem in the United Kingdom flows from a complete failure of political leadership.

Yet.

One should not confuse the opportunist for the opportunity.

Johnson does what he (thinks he) can get away with.

This is why Johnson is perhaps not so interesting for any individual qualities, but for what his premiership tells us about the United Kingdom constitution.

Here, what we are told are not just weaknesses of the constitution – but also its strengths.

For example, the status of the Good Friday Agreement as a core constitutional instrument should be without doubt.

It continues to shape and control what London governments can and cannot do in respect of Brexit and Northern Ireland.

The reported climb-down of Brexit minister David Frost over the supposed ‘red line’ of the European Court of Justice can be attributed to the value that Ireland and the United States place on what President Joseph Biden once pleasingly called ‘the Irish Accords’.

But.

Most of what Johnson’s premiership shows about the constitution of the United Kingdom is its weaknesses.

The ease, for example, with which a prime minister can evade and frustrate checks and balances on their office.

About how the only restraint on a governing party with a majority is that ancient one of Nemesis following on from Hubris.

And about how simple it is for determined government departments to remove rights from individuals.

As this blog has previously described: the government of the United Kingdom is currently pushing forward legislation that will enable its officials to kill people without legal consequences, to prohibit meaningful protest, and to summarily remove citizenship from you because of where your family is from.

These are all things which were possible before Johnson.

In 1929, a sitting Lord Chief Justice – Hewart – published The New Despotism warning of the implication of the power of a government that controlled the legislature, for it would tend “to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme”.

In 1976, the Tory (former and future) Lord Chancellor Lord Hailsham warned of an “elective dictatorship”.

It was only what Peter Hennessy called the ‘good chaps’ theory of government that stopped a government exploiting its powers to the full.

In a way, all that has happened is that we have now finally had a prime minister and a government that – to use a current phrase – ‘does not recognise’ self-restraint.

In a way, one cannot blame Johnson – for this what he does, and probably can do no other.

More culpable are the governing party’s members and MPs who voted for Johnson in the 2019 leadership election knowing full well the nature of him as a politician.

What the rest of us now get to see is what such a politician can show us about the constitution of the United Kingdom.

And it is not an especially pretty scene.

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The weird state we are in

10th December 2021

This is a daily law and policy blog – indeed, there has now been a post daily for well over a year.

And being a daily blog, it sometimes difficult to step back and appreciate just how weird our government and politics are at the moment.

For example, we have the situation where if the Prime Minister has lied to his advisor on standards, then it will be the advisor who is expected to resign.

We also have the government’s ‘crime week’ that started with the Prime Minister dressing up as a police officer, and ended with the governing party being fined by the Electoral Commission.

There has been a row about a Christmas party that has now dominated politics for two weeks.

And in the meantime the government is pushing forward legislation that will enable its officials to kill people without legal consequences, that will prohibit meaningful protest, and that will summarily remove citizenship from you because of where your family is from.

Strange days, dark days.

And it is difficult to keep up, let alone try and make sense of any of as a law and policy commentator.

The main (but not only) cause of this is Brexit.

Brexit, in effect, has thrown a great deal of what was settled in British politics up into the air, and it still has not landed.

And government departments – free from any leadership and real accountability – are taking the opportunity to get away with as much illiberal legislation as they can.

The only ‘civil liberties’ complaints from many politicians will be about wearing masks and encouraging vaccines.

The antics of the current Prime Minister, unfit on any political view to hold that office, are possible only because of Brexit and its aftermath.

Will things ever get settled again?

Will there ever be a return to ‘normal’ politics?

The current weirdness may now be a routine commonplace.

But it should never be considered as normal.

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The Myth of the Dead Cats

9th December 2021

There is a certain Dickensian quality to the unfolding political events in the United Kingdom.

The events of a Christmas past – last Christmas – are illuminating the politics of Christmas present.

And, unlike other wrongs and transgressions by this wretched government, the facts and significance of last year’s Christmas party are readily grasped by the most unpolitical of people.

It has ‘cut through’.

Many people will not empathise with or understand those who may have their citizenship withdrawn, or want to make noisy protests, or want to make a hazardous channel crossing without drowning.

But, just like a day trip to see a castle, people easily understand about a works Christmas party.

This is not to say there are not more fundamentally bad things happening in law and policy at the moment.

This tweet summarises the current illiberal situation well:

The government of the United Kingdom is pushing forward legislation that will enable its officials to kill people without legal consequences, to prohibit meaningful protest, and to summarily remove citizenship from you because of where your family is from.

All this is as sickening and disconcerting as it can be.

But none of this has ‘cut through’.

*

Whenever the government does more than one bad thing at once, somebody somewhere will comment that one of the things is ‘a dead cat’.

This is the phrase to describe a tactic of political distraction.

One of the bad things happening – usually the more trivial – will be described as a cunning misdirection, to distract us from a far less trivial thing.

But.

The thing about ‘a dead cat’ tactic is that it requires basic competence.

It relies on the notion that those in power are capable of doing something that works.

This is a perhaps comforting idea.

The reality is, at least with the current government, that there is no basic competence.

The true situation is that the government is doing lots of bad things at once, all over the place.

This is a scarier predicament.

When one of the bad things gets more public and media attention, it is not because a deliberate political tactic has worked.

It is instead because the thing in question just happens to be more understandable.

That is the only difference.

*

This is a chaotic government.

It is tempting to posit some order or pattern – or conspiracy – as the alternative of absolute disorder is too horrible an idea to contemplate.

Indeed, it is an even more horrible prospect than a dead cat suddenly slammed upon a table.

**

The Great Cat Massacre by Robert Darnton

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That Downing Street Christmas Party – the Law, the Policy, and the Politics

8th December 2021

The Downing Street Christmas party story is a good example of an incident that can be looked at in a legal, a policy and a political way.

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The Law

From a legal perspective, it may well be that the infamous party last year at 10 Downing Street was not a breach of the law – at least for the organisers.

The experienced criminal barrister and legal commentator Matthew Scott has provided a detailed legal analysis of the situation over at his blog.

For the reasons he gives it looks as if organising the party may not have been a criminal offence – as long as it took place in the non-residential part of the building.

Less clear – oddly – is the position of the party-goers, and the only person who has read and considered every single coronavirus regulation – the barrister Adam Wagner – avers that those who attended the party may still face the possibility of liability.

Yes, this is rather counter-intuitive – but the law here was and is a mess.

And when the law is a mess, such counter-intuitive situations will happen.

But as Wagner says elsewhere, there is legal unfairness as well as inconsistency:

So, although the metropolitan police are (rightly) considering whether to investigate the Downing Street party as a breach of the law, it looks as if any prosecutions or fines may be unlikely – unless there are admissions.

This is more by luck than judgement, as one suspects nobody in Downing Street knew or cared about the legal position at the time.

They would have partied anyway, as they see legal rules as being for other people.

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Policy

Now we turn to the non-legal rules that applied at the time.

For even if organising the party was not (technically) illegal, it still may have been in breach of the guidance at the time.

And what was the policy at the time?

Helpfully, here is an official government tweet from the very day before the party, replying to a query:

That tweet in turn links to the guidance of the time.

That guidance expressly provided:

So, even if (unwittingly) the organisation of the party was not a breach of the criminal law at the time, there is no wiggle-room about it being a breach of the applicable guidance.

In essence: even if not a breach of the law, it was a breach of the rules.

But again, one suspects nobody in Downing Street knew or cared about the policy position at the time.

They would have partied anyway, as they see non-legal rules as also being for other people.

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Politics

When there is a leak, other than when the disclosure is contemporaneous, its timing and content will usually tell you more about the enemies of the subject of the leak than anything else.

Leaks are often a matter of timing – and of perceived vulnerability.

And so somebody somewhere decided this was the right time to disclose to the news the video of the mock press conference.

The fuller video here should also be watched.

Given internal security at Downing Street, the disclosure of such material indicates that the prime minister has some well-placed and well-connected political enemies.

As to the content of the video, there is nothing wrong with such questions and answers being rehearsed – and there is nothing wrong with it being done with an appropriate sense of humour and with candour about not knowing the answers.

That is how such rehearsals are usually done.

What is telling and discomforting is the general levity not of the spokesperson trying to work out a line-to-take – but the levity of all the other political operatives involved.

It was a huge joke.

There was a realisation that laws and rules had been broken, but they were just to laugh about.

Bantz.

As it happens the mock session was not a rehearsal for an imminent press conference, but (presumably) one of a sequence of sessions in preparation for the the televised press conferences that were then envisaged as commencing the next month.

And so we have a press conference room, at huge expense, which was never to be used:

(And only yesterday this blog was bemoaning the proliferating use of United Kingdom flags for political broadcast purposes.)

There are two obvious broad political consequences of this situation.

First, the currency of official denials is now not so much devalued, but worthless:

And second, there will now be no perceived legitimacy whatsoever in the government direction and guidance on public health generally and coronavirus in particular.

Politics – in a democracy – is about words, authority, and power.

And this government could not have done more to compromise its political position.

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Law, Policy and Politics combined

All this has happened at perhaps the worst moment – for the government and for the rest of us.

A new variant coronavirus may require the government to use law, policy and political leadership as means to address the new public health problem.

But the government – by this and other unforced errors – has undermined its ability to do this.

The Downing Street Christmas party story may be a good example of an incident that can be looked at in a legal, a policy and a political way.

But it also can be seen as a good example of everything the government should have avoided.

And the ultimate problem – that of a complete failure of political leadership – cannot be blamed on others:

**

“Hello Nemesis? You say Hubris invited you? Go straight in and get some wine and cheese.”

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Why the prime minister and other politicians should not be wearing police uniforms

7th December 2021

One of the wisest political decisions in the inter-war years was to ban political uniforms:

They knew in the 1930s that the combination of uniforms and democratic politics is not a happy one.

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This blog has previously been critical of the Home Secretary for wearing an especially designed police uniform and attending a police operation:

Not even Winston Churchill wore a police uniform as Home Secretary in similar circumstances:

One perhaps hoped that the Home Secretary’s wish to dress up in police uniform was a one-off.

But no.

Now we have this spectacle:

We have the very Prime Minister wearing a police uniform.

*

Does it matter?

Surely there is no harm in politicians wearing fancy dress?

And perhaps there is no harm in them doing so, as long as they look silly when they do.

But.

A distinction between the police and the civilian politicians to whom they are accountable is a good thing.

The blurring – even removal – of that distinction is, in turn, a bad thing.

The distinction is a mark that we are not a police state – and a mark that we are not in any way approaching a police state.

It is a line – a police line, if you will – which should not be crossed.

Even for promotional photographs.

And already we are at a stage where ministers are expected to have at least two United Kingdom flags behind them in official photographs and films.

That would have too seemed odd for a British politician not so long ago.

Visual rhetoric and paraphernalia is potent, sometimes toxic.

The legislators of 1936 were sensible enough to halt political uniforms in the United Kingdom before it went too far.

A similar prohibition on politicians in uniform would also be a wise move.

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How the Government both won and lost the Priti Patel High Court bullying case

6th December 2021

Today judgment was handed down in the case brought by the civil service union the FDA in respect of the Prime Minister’s determination that the bullying of the Home Secretary had not broken the Ministerial Code.

On the face of it, the government won the case.

And so this is what the press reported (and that is what time-poor news desks have published on their news sites):

But.

There are different ways that a government can win a case like this – and a closer look at the judgment shows that in substance this is not a welcome decision for the government at all.

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First, we need to know what the case was – and was not – about.

The case was not about deciding whether the Home Secretary is a bully or not – that was not what the court was being asked to determine, and the detailed evidence about bullying was not put before the court:

And, as that was not the question before the court, then the hot takes that the court has ‘cleared the Home Secretary of bullying’ are not and cannot be true.

The primary question before the court was whether it was open to the Prime Minister, given the information before him, to determine that there had not been a breach of the Ministerial Code.

The court found that, on this occasion, the determination that there had not been a breach of the Ministerial Code was one of the determinations open to the Prime Minister on the information before him.

But in reaching that conclusion the court made a number of points that were against the government – and these points may be significant in future cases.

*

First, the court held that the Prime Minister’s determinations of the ministerial code were, in principle, amenable to judicial review by the courts.

The government made a spirited attempt to argue that the Prime Minister’s determinations of the ministerial code were not ‘justiciable’ – that the very subject matter was a no-go area for the High Court.

The court deal with justiciability in paragraphs 25 to 43 of a 61 paragraph judgment – about a third of the decision.

The court accepted that not every determination of the Code may be judicially reviewed.

And, of course, those judicial reviews which are heard by the court may not succeed (as with this case).

But there is nothing stopping a similar case on different facts succeeding just because of the subject matter.

That the court held that, in principle, prime ministerial determinations of the Ministerial Code are amenable to judicial review is a boon for transparency and accountability.

*

Once the court had dismissed the government’s attack on justiciability, it turned to whether the Prime Minister had misdirected himself in applying the Code.

Here the key paragraph of the Code is:

“1.2 Ministers should be professional in all their dealings and treat all those with whom they come into contact with consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary colleagues and parliamentary staff should be proper and appropriate. Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated.”

The information before the Prime Minister was an advice from Sir Alex Allan, the independent adviser on the Code.

His advice included the following:

“My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect.

“Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“To that extent her behaviour has been in breach of the Ministerial Code, even if unintentionally. This conclusion needs to be seen in context. There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time.”

Having considered this advice, the Prime Minister’s conclusion was:

“Sir Alex’s advice found that the Home Secretary had become – justifiably in many instances – frustrated by the Home Office leadership’s lack of responsiveness and the lack of support she felt in DfID three years ago.

“He also found, however, that the Home Secretary had not always treated her civil servants with the consideration and respect that would be expected, and her approach on occasion has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“He went on to advise, therefore, that the Home Secretary had not consistently met the high standards expected of her under the Ministerial Code. 

“The Prime Minister notes Sir Alex’s advice that many of the concerns now raised were not raised at the time and that the Home Secretary was unaware of the impact that she had.

“He is reassured that the Home Secretary is sorry for inadvertently upsetting those with whom she was working. He is also reassured that relationships, practices and culture in the Home Office are much improved.

“As the arbiter of the code, having considered Sir Alex’s advice and weighing up all the factors, the Prime Minister’s judgement is that the Ministerial code was not breached.”

*

The FDA’s claim was that, given Allan’s advice, this was not a conclusion that the Prime Minister could have legally made.

Here paragraph 58 of the judgment is important about the Prime Minister’s conclusions:

In other words: because the Prime Minister did not say Patel was not a bully, it must be that he either accepted Allan’s advice or did not form his own view.

Had the Prime Minister explicitly rejected Allan’s advice that it was bullying then it would have been a different legal situation.

The judgment then goes on in paragraph 59 to the other factors considered by the Prime Minister – it is not a paragraph easy to follow in one go, and may require re-reading:

The essence of the paragraph is in the sentences:

“In that context, the statement that the Prime Minister’s judgement was that the Ministerial Code was not breached is not therefore a finding that the conduct could not be described as bullying.

“Rather, it is either a statement that the Prime Minister does not consider, looking at all the factors involved, that it would be right to record that the Ministerial Code had been breached, or alternatively, that the conduct did not in all the circumstances warrant a sanction such as dismissal as it did not cause the Prime Minister to lose confidence in the minister.”

*

The Prime Minister can consider himself very lucky to have won this case.

Once can quite imagine a differently constituted court (or the Court of Appeal) taking a harder view against the Prime Minister

The FDA, in turn, are right to aver the following:

“The High Court has decided:

 – That the prohibition on bullying, discrimination and harassment in the Ministerial Code is justiciable in the Courts.

– That the Prime Minister must correctly apply those concepts when determining complaints against ministers.

– That it is not an excuse for bullying under the Code that a minister does not intend or is not aware of the upset and distress caused by their actions.

“These findings vindicate the claim brought by the FDA and represent a clear rejection of the idea that there are different standards for ministers than for civil servants. The FDA is applying for its full costs of the claim to be paid by the government.

“In an unexpected development, the Court also found that the Prime Minister had not acquitted the Home Secretary of bullying in his decision in November 2020. The Court has held that the Prime Minister must have accepted the advice of Sir Alex Allan that the Home Secretary had engaged in bullying (or at least that he did not reach any concluded view on the matter).”

*

Whichever government lawyer drafted the conclusions of the Prime Minister ultimately won this case for the government.

A more clumsily worded statement would have meant that even this court would have decided in favour of the FDA.

The government won – just about.

But now there is a High Court decision holding that determinations of the Ministerial Code are justiciable and that the Prime Minister must act properly in applying the Code to particular cases.

The case was also decided on the bases that the Home Secretary was not exonerated of the allegations and that the lack of intention did not mean it was not bullying.

The FDA must be tempted to have one more heave – and to take this to the Court of Appeal (though there would be a risk that it could lose the gains it has made).

The government is in the harder appeal position – for it can hardly appeal a case which it has ‘won’ and so it is stuck (for now, unless the FDA appeals) with the finding of justiciability and other points made by the court.

So this is a good example of a case which both sides can be seen to have lost – but one in which both sides can also be seen as having won.

And the more significant victory, for transparency and accountability, is that of the FDA.

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The lack of care about the Downing Street rule-breaking is more concerning than the rule-breaking itself

5th December 2021

Yesterday this blog covered a government supporting politician saying openly that the police should not trouble themselves with the now infamous Downing Street party of last Christmas.

Today the Lord Chancellor and Justice Secretary said – incorrectly – that the police do not normally investigate offences more than a year old.

There is something up here.

Yesterday this blog averred that it is not a good thing for politicians to routinely be reporting each other to the police, and also that the penalties for parties a year ago were disproportionate.

So, on those bases, this blog is not cheering and clapping the prospect of the police and the criminal process getting involved in a matter of political controversy.

But.

Even taking any reservations at their highest, there is also something worrying about how ministers, their advisers and their political supporters are so nonchalant about having broken the rules themselves.

And for the nonchalance of the Lord Chancellor and Justice Secretary to extend to incorrectly stating the position of the police incorrectly, then that makes the situation very worrying indeed.

His language was also especially evasive:

‘Unsubstantiated.’

The word a lawyer often uses when they cannot deny the alleged fact, but are instead pinning everything on a lack of proof.

It is invariably telling when the word is used instead of the more simple ‘untrue’.

Perhaps the government will brazen this out.

Perhaps it will be a mini-scandal soon forgotten in our exhausting, hectic news-filled times.

But it is worth pausing a moment to consider what is actually happening here.

There are credible, non-denied reports of a substantial breach of the criminal law in Downing Street.

That would be bad enough – though sometimes mistakes and misjudgments do happen.

But it is the cavalier attitude of the government and its supporters to these reports that is more concerning.

One rule for us – and no rules for them.

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A United Kingdom politician openly says that Downing Street should be above the law

4th December 2021

Here is a tweet to consider carefully, from a British Member of Parliament:

Let’s separate out the issues here.

First, there is something to be said against politicians reporting each other to the police and seeking prosecutions.

Getting the police involved should not be a a routine part of political activity and party campaigning.

It is, to an extent, distasteful as a partisan tactic.

But second, if there are laws then they do have to be enforced equally.

It may well be that the penalty against parties last Christmas was disproportionate and illiberal.

But it was a penalty that many outside Number Ten incurred.

And so either those penalties for others should all be revoked or the party-goers of Downing Street should be treated the same way.

One does get the sense that those in the government machine regard the laws and rules they impose on the rest of us to be only for the rest of us to comply with.

Third, the Member of Parliament is openly saying that Number Ten  should be exempt from police investigation and excused from the deployment of scarce police resources.

That is an extraordinary proposition, if you think about it.

But one suspects the Member of Parliament has not really thought about it – though that, in turn, makes it worrying as a casual aside.

On any view, such a public statement by a Member of Parliament tells us some unfortunate things about the state of our polity as 2021 comes to an end.

Brace brace.

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Comments Policy

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.