1st February 2023
The working title of this post was something like “Boris Johnson, Nadhim Zahawi, and the creeping judicialisation of ministerial matters” – but that was perhaps too provocative and over-stated, even though it does have an element of truth to it.
One starting point here is that ministers of the crown are appointed, at least in constitutional theory, by the monarch, on the advice of the prime minister.
Another starting point is that parliament is the master of its own procedures, and what happens in parliament cannot be gainsaid by any court.
Both of these things – the hiring and firing of ministers and the affairs of parliament – are firmly in the realm of politics, rather than part of the province of law.
And those commentators and politicians who are hard against things like “judicial activism” and “unelected judges” are usually the most vigilant about judicial intrusions into the realm of politics.
There is a “political constitution” we are told, and it is not the business of judges and lawyers to get involved in what are matters of politics.
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But.
In the recent political matters of, first, Boris Johnson and the privileges committee and then second, the sacking of Nadhim Zahawi we are hearing phrases such as “natural justice” and “due process”.
The contention is that neither parliament nor the prime minister should have unfettered discretion.
There are things parliament and the prime minister cannot do, it is averred, because of the procedural rights of the politician involved.
This blog covered, you may remember, the “legal” advice commissioned by Johnson and his criminal lawyers to the effect that parliament was acting with conspicuous unfairness in its dealings with Johnson, even though it would never be a matter for any court.
This advice, we were told at the time, was “absolutely devastating” but, in fact, it absolutely missed the point.
This weekend just gone saw a similar complaint from supporters of Zahawi:
One response to these protestations is simply to scoff, especially as both Johnson and Zahawi are the sort of politicians who otherwise would criticise lawyers for “getting people off on technicalities”.
(And many such “technicalities” are procedural points, as opposed to substantive points on the merits.)
Like the proverbial “foxhole atheists”, it can be remarked that politicians who otherwise would disdain, if not despise, clever lawyerly tricks seem to have a change of heart about procedural fairness when their own rights are at issue.
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But scoffing alone would be wrong: for it is actually heartening to see due process and procedural fairness being given emphasis in political matters.
Of course, taking due process and procedural fairness seriously does not (necessarily) mean political matters being dragged into the courts.
The prerogatives and privileges of both the crown and of parliament mean that such matters are not justiciable.
And there is the danger of due process being misused.
In particular, there is the problem of prime ministers using inquiries and investigations as the means of not taking decisions which they are supposed to make themselves under our constitutional arrangements.
And there is the problem that, like with the (infamous) wait for the Sue Gray report, inquiries and investigations can be used as an excuse to avoid and evade proper parliamentary scrutiny and political accountability.
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Taking due process and procedural fairness (more) seriously is a welcome development, given the alternative of arbitrary and capricious decision-making.
Yet taking such things seriously means it should not matter whether doing so is politically convenient or not.
Fairness should always a basic value, and not a means to an end.
And so the best way politicians could show us that they do take due process and procedural fairness seriously is not when it is in their own cause, but in the cause of those far less powerful in society whose rights are undermined or disregarded.
For if politicians cared as much about the procedural rights of the less powerful as they do about their own due process rights, then that would show their protests were not just cynical, self-serving expediencies.
No doubt, however, such politicians would shrug off such uneven-handed inconsistency as, well, just a technicality.
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Leave voters rejected talk of sustained growth and GDP in the EU as meaningless.
Will ‘due process’ and ‘natural justice’ be as irrelevant – one rule for the rulers and another for the ruled?
“that would show their protests were not just cynical, self-serving expediencies.”
Yes it would – if it were ever to happen. I’m not holding my breath!
The irony of Zahawi claiming he didn’t get a fair hearing whilst previously his solicitors had tried to silence questioning of his tax affairs is quite remarkable.
It seems today’s politicians want the law upheld when it’s in their favour and rail against it when it clips their wings. Perhaps this has always been the case, but I’m left with the impression that ‘the law’ is no longer an absolute, as is the case for most of us, but, for politicians and the powerful, something to be negotiated around.
Not so much the rule of law, but the rile of law?
It is disgraceful that both politicians and the very wealthy are able to muster the resources they do in order to evade the consequences of their actions. Frequently, these actions are quite obviously wrong, but those involved can afford to pay huge sums in order to devil down into the letter of the law, and then “get off on a technicality”. At the same time, Legal Aid for people who do NOT have the resources has virtually vanished, and anyone on disability benefits who desperately needs to challenge a DWP decision will find that financial support to do so has been withdrawn. This is notwithstanding the fact that >70% of DWP decisions are overturned on appeal.
Where, I wonder, has honour gone? As TS Eliot said:
“Then fools’ approval stings, and honour stains”
Many of these people who get benefit decisions turned over on appeal ought to be encouraged to claim compensation for the breach of their rights under Article Six to have these things settled within a reasonable time.
I am led to believe that many, if not most of these decisions are simply unreasonable in the first place, in which case any delay caused by the appeal process is unreasonable, but I am further led to understand that the process is quite slow, on account of being clogged up by so much (wilfully?) bad decision making.
The reasonable time required by the convention is an absolute measure: it is not Reasonable considering the system is clogged up.”
The important (but frequently overlooked) question is:
What is it which makes these people believe that they have SO much to offer to the country that it is essential for them to remain in Government?
(Answers on a very small postcard, please….)
Ministers of the Crown are officeholders and therefor are excluded from employment laws. (I spent 30 years as an officeholder and know)
In any case all ministers hold their post depending on the confidence of the Monarch (exercised through the Prime Minister).
It is the Conservative party which is in power not some bunch of revolutionaries, but why are they acting as if they are?
Procedural fairness. Fairness by all means, but which procedures? Commons committees?
But their findings can be ignored (Priti Patel) or challenged in the ECHR (Owen Paterson) or pre-emptively challenged (at public expense) (Boris Johnson). An “independent adviser”? (Nadim Zahawi). An employment barrister? (Dominic Raab). And who’s to say what steps these characters might take given unfavourable outcomes?
I don’t think Michael Howard (a lawyer) thought much about procedures when he sacked Johnson for lying about an affair. And perhaps that was no bad thing.
Much as I detest most of the policies of the Tory Govt, for me the overriding issues are their lack of regard for the Nolan Principles and their belief that the normal rules do not apply to them (apart from cases where the normal rules benefit them). Whatever we think of their policies, we should at the very least be able to trust in our politicians being honest, open and law-abiding.
Excellent – as usual, justice and fairness are absolute ends never means to anything else – and perhaps this is the litmus test in cases such as Zahawi and Johnson (and others). When they become self serving means to keeping power and privilege they damage the idea of absoluteness – which is what powerful people do – they clutch power to themselves and deny it to others as a means of keeping it.
Great piece on Due process and ministerial matters. Thank you for bringing clear sighted analysis to this fraught, essentially political area.
The corruption of Johnson has corrupted all those around him, whether cabinet ministers, junior ministers, backbench Conservative MPs and even some civil servants, including the very top level. It will take a long time for UK governance to recover. That is a heavy burden for others, whether the Speaker or the currently opposition parties, to carry.
Seems to me our parliamentary system is something that has evolved from monarchy without putting the mini-monarch – aka the PM – under much more constraint than any absolute monarch ever was.
Without constraint we might expect lying and cheating to be fairly normal. Indeed we might feel that if the top dog had the power of the block and axe we might expect behaviour to be a bit better – at least overtly. ‘Justice’ being short and very sharp and courtiers kept on a short leash.
This all goes way back before Machiavelli’s time. The ‘good’ king never being likely to live long. Even back to a tree full of monkeys deceiving each other over where the best bananas and boy/girl monkeys were to be found. Process and procedure however imperfect is all that saves us from such times. All we need is for our mini monarch and courtiers to follow process rather than bananas – as if.