16th February 2022
There are two ways by which those with public power will act lawfully.
The first is self-restraint: that ministers and officials will act lawfully because, in essence, they want to do so.
The second is by enforcement: that ministers and officials who act unlawfully are open to challenge in the courts and can also face action from the police or other regulatory bodies.
So: if not the first, then the second.
But hopefully the first, which is better for everyone, apart from public law litigators.
The problem is what happens when ministers and officials do not care for self-restraint?
Then we have to go to the second stage, all too quickly.
But then there are new problems.
Who decides, for example, which cases to litigate?
How are those challenges to be financed?
And what if there is nobody in a position to litigate a case?
What is there – ultimately – to stop lawless behaviour by those with public power?
These questions are important – and they are not easy to answer.
One solution is to have non-governmental organisations litigate these cases, in the public interest.
But this brings new problems.
Pressure groups can have their own agendas – and some see litigation as an aid to fundraising and campaigning, rather than a thing in itself.
(When I was legal adviser to a pressure group party to a case that went all the way to the supreme court, I was careful to ensure that there was not a whiff of any ulterior motive and that the focus – correctly – was on the litigation.)
Too many pressure groups litigating elides the distinctions between politics and law.
And some may be tempted to blame the pressure groups.
But.
That is to partly see the problem the wrong way round.
The primary reason why so many non-governmental organisations are litigating is because of problems with those with public power.
The pressure groups in court are (at least) as much a consequence of poor quality policy-making and rule-making by ministers and officials.
In essence: better quality policy and rule-making will mean fewer subsequent legal challenges by pesky pressure groups.
But that would mean ministers and officials facing up to their own failings.
And it so much more easy to blame the pressure groups instead.
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Thanks for this. I have been wanting to try and articulate this very point in relation to the discussion on Twitter today.
You encapsulate it so well; I can now rest easy.
An interesting description of the problem but I think DAG does not go far enough. This blog fails to consider the potential blowback on the pressure group or individual litigating in the public interest against allegedly unlawful actions by ministers.
There was a great deal of media outcry against the prorogation of Parliament but it was one courageous individual, Gina Miller, who took the government to court. As a result of that, she was faced with abuse and even death threats. Even though she was proved right, by a unanimous decision of the Supreme Court, the threats against her continue, I understand. Other pressure groups, and individuals involved in them, have also faced abuse and threats.
Yes, it would be better if ministers etc would exercise restraint. But since that is, increasingly, NOT the case, how can it be right that the only redress seems to be for individuals to put their personal safety on the line? Can we not do better than that?
I don’t challenge the veracity of this explanation, but I would suggest that there is a fundamental flaw in the logic it lays out:
Ministers and Officials can only be held to account when there are sufficiently clear, sufficiently robust and sufficiently enforceable laws in place to do so.
Take, for example, the arrangements with respect to MP’s expenses. MP’s receive expenses “to cover the costs of running an office, employing staff, having somewhere to live in London or their constituency, and traveling between Parliament and their constituency.” [parliament.uk]
I took the above text directly from the Parliament UK web site, today, but note the lack of precision in the language. You only have to look back to the stories of the “MP’s Expenses Scandal” (porn movies, a moat, a ride-on lawn-mower, a new coop for ducks, etc., etc.) to realise that MPs have been quite happy to exploit the rules that they write and their mates enforce.
I ask these questions to given an example of the way that “lack of clarity” is used extensively in Westminster to stop short of declaring certain practices illegal.
To borrow from James Mill and 1835:
“The people must appoint watchmen. But quis custodiet ipsos custodes? Who are to watch the watchmen? —The people themselves.”
The only way to have public faith in the proceedings of government is to make those proceedings legally and “enforceably” transparent.
Footnote: a really simple way to stop abuse of MP’s expenses is to abolish the practice entirely. Take one of the Ministry buildings that the government no longer needs in London and convert it to hotel or small-apartment-style accommodation. Allow MPs to book rooms at the facility as required. Have on-site catering for all meals. You can even allow them to stay with a spouse for a set number of nights each year.
But you simply don’t need to permit MPs to secure their own homes, or spend tax-payer money on furnishing them. Or (as Jack Straw did) occupy their grace-and-favour home and then rent out their “MPs accommodation” and pocket the income.
All of these abhorrent practices were possible because the rules and laws were insufficiently strict. So yes, I agree with David in principle. But as they say, the “Devil is in the Detail”.
MPs in their London digs as suggested here should be in minimum standard accommodation as should be built for homeless people, and first level renting through council provision to address to housing crisis. Maintaining such a link in standards will firstly ensure that minimum standards are habitable and secondly keep MPs aware of how lowest level of housing feels to live in.
Provision of this London home needs to be linked with discounted standard class rail travel to replace any vehicle provision or allowance. There would then, as stated, be no need for any expenses.
address *the* housing crisis. (sorry)
Correction
address *the* housing crisis. (sorry)
Wholly agree with Joanna.
There’s the financial aspect too. In addition to any crowdfunding, taxpayers are presumably funding the government’s costs, whatever the outcome. I really wish more power rested with parliamentary committees, both in holding the executive to account and in setting limits on money wasted defending the indefensible – especially if, as has been averred, costs are set particularly high to ward off the opposing party.
Democracy or mafia politics?
On 6th February you wrote a blog concerning the Parliamentary and Health Service Ombudsman (PHSO), to which I made substantial comment (see my 22.28pm 6th February).
Since pointing out in written evidence to, and published by, the Public Administration and Constitutional Affairs Committee (PACAC), that a proposal by Michael Gove, when he was Cabinet Office Minister, to ‘extend’ the Ombudsman’s tenure for 2 years could be considered unlawful, I have written to Steve Barclay on four occasions (15th December, 17th January, 1st February and again earlier today 16th February). What I am seeking from the Cabinet Office is the rationale for not complying with Section 1 of the Parliamentary Commissioners Act 1967 which states the Ombudsman is not eligible for re-appointment once his term of office ends. The current Ombudsman’s term ends on 31st March 2022.
Despite acknowledgements of my correspondence, the Cabinet Office has remained silent on this issue for over two months. Therefore my questions are:
If Mr. Barclay ‘extends’ the Ombudsman’s term of office, will that be an unlawful act?
Will the Ombudsman be complicit in an unlawful act by continuing in office from 1st April 2022?
To date, no response has officially been published concerning this matter. In the event that the Ombudsman’s tenure is ‘extended’ and that is subsequently found to be unlawful at Judicial Review, what will be the validity and constitutional position of any report he issues after 1st April 2022?
Whilst I and others are highly critical of the Ombudsman service, your article today rightly takes all ‘pressure group’ activity out of the equation and reduces it to a matter of law only. I am of the opinion that until Mr. Barclay publishes his response to the PACAC recommendation, or 1st April arrives, it is not possible to seek a judicial review because, until such time, there is no evidence the law has been ‘circumvented’ by the Cabinet Office.
Last year we saw the Metropolitan Police Commissioner being granted a two year extension which has not ended well. Will we see the same with the Ombudsman?
May I respectfully suggest that a bit of the cold hard light of day might encourage a more substantial response? If you were to share this recap with a respectable political news reporter – say something like the R4 Today program, you might find the extra publicity for your question prompts a response.
Thanks for this update. Taken along with DAG’s blog today it perfectly illustrates how there is no rule of law anymore at the top i.e. in Westminster itself.
This bodes very badly for the nation as it is true that the fish rots from the head.
David,
There is a question I’ve been pondering since asking my MP to refer a complaint I made to the NHS for consideration by the PHS Ombudsman, having exhausted all other ways forward over the last 8 months. All I wanted was an estimation of the time I was likely to have to wait to be diagnosed following a referral by my GP to a specialist well over four years ago. I need the information so that, in consultation with my GP, it is possible to make an informed decision about the merits of leaving a queue I’ve been in for far too long in order to be diagnosed privately: The cost of that decision would be forgoing treatment – I can’t afford that privately – in exchange for the benefit of certainty and confirmed status that will at least provide me with some legal protection in the event I am discriminated against because of the condition my GP suspects I suffer from.
The NHS claims that it can’t make such estimations and it is obviously reasonable to doubt that that is true. The most senior manager in the trust I am a victim of has, in correspondence with my MP, made the assertion that the Covid 19 pandemic is somehow responsible for waiting time I endured for years prior to its advent. Ministers have made statements in the house about what NICE does not recommend in response to questions from my MP about why NHS trusts are not doing what NICE do in fact recommend, and how that unacceptable situation will be remedied.
The least bad obvious reason for the Kafkaesque stonewall I’m looking at, is that funding and/or other decisions have been made that make it impossible to deliver services the that the NHS is obliged to (I’m told I have ‘rights’ – whatever that means). The extensive and universal efforts that have been made to withhold information I need for health reasons serve both to obfuscate the suspected causal relationship between self serving political choices and to damage my health and future prospects.
I think that is a crime that the PHSO seems likely to dismiss based on what I have read on your website.
If my MP decides to refer my complaint to the Ombudsman, whose interests are best served by giving permission or not for Them to go ahead and refer? Mine, or the publics?
I am unsure whether you were referring to DAG’s blog or my comment Adrian, so apologies if you were responding to David Allen Green.
Again, I presume you are referring to the website PHSOthetruestory.
It may be of interest that last year, PHSO made the decision not to carry out investigations into issues falling within Tier 1 or 2 of their ‘scale of injustice’. However, there has never been a satisfactory answer as to how they can decide the level of injustice without first carrying out an investigation. It is unlikely a County Court Judge would decide a level of compensation to a road accident victim before understanding the severity of injury.
Whilst it might have had an administrative justice function in the 1960’s when it was set up, the Ombudsman service is not fit for purpose today. Indeed Quentin Hogg, later Lord Hailsham, who was an MP when the bill was debated in Parliament at the time described it as ‘a swiz’.
DAG has indicated he will be returning to the subject in future blogs. Whilst it is a ‘dry’ subject currently attracting little public and journalistic interest, it is an important one. The cumulative effect of PHSO failings is greater than high profile issues such as Hillsborough, Grenfell and now the Post Office. The problem is, in general terms, particularly regarding Health Service complaints, it is one person at a time. That is a factor in the issue not cutting through
When members of the public attempt to take legal action against a government body, whether they are in pressure groups or not, they face extortionate cost threats from the public service legal teams. This happened recently to the Good Law Project bid to hold the government to account for the PPE scandal. https://goodlawproject.org/update/ramping-up-costs-silence-us/
Ultimately, the Good Law Project were able to secure a cost cap and have been awarded 75% of their costs due to a successful outcome . https://www.irishlegal.com/articles/high-court-orders-uk-government-to-pay-good-law-project-s-costs-in-contract-case
A similar cost threat put a spanner in the claim made by Dr Chris Day. https://sharmilachowdhury.com/2018/12/03/nhs-whistleblower-forced-to-withdraw-claims-after-being-threatened-with-life-changing-costs/comment-page-1/
The government has an endlessly deep pot of public money to use against the citizen. How many of us are brave enough to take them on?