20th March 2023
This may be quite the moment for the interplay of politics and process.
We have this week the former prime minister Boris Johnson facing detailed questions before the privileges committee.
We also have the deputy prime minister and lord chancellor Dominic Raab facing the outcome of an inquiry conducted by a senior barrister.
We have rumours that former president Donald Trump is about to be arrested.
And last week we even had an arrest warrant for Vladimir Putin.
*
These are not equally momentous, but they do have two things in common.
First, each of these are examples of politicians being held to account but not in any usual way: each is unusual.
The nearest to a normal political process is Johnson being examined by fellow members of parliament before a parliamentary committee: but he may have to evidence on oath, and the story of this inquiry is already packed with legal and media attacks and manoeuvring.
The inquiry into Raab is also not formally legalistic – but it is lawyer- and evidence-driven.
While Trump and Putin may face formal judicial proceedings.
Second, each of these processes features a mode of evidence-based questioning or inquiry that is structured so that the probing is difficult to evade or ignore.
And this is because politicians are adept at evading or ignoring questions.
In other words: politicians are good at not being accountable – that is, literally, at not giving an account of what they have done.
Normal political processes of accountability have in each of the examples failed – or in the case of Putin, never really existed.
And so resort is being made to forms of questioning and inquiry that are harder to evade or ignore.
Some may think that a law and policy blogger would applaud this: for at last there will be hard examinations that cannot easily be deflected.
But, no.
And this is because legal and political processes should be distinct and separate.
Instead of this being a triumph of the forensic method, it is a failure of the political method.
This is not a good thing.
Every lurch towards extreme parliamentary processes (Johnson), non-parliamentary processes (Raab), and judicial processes (Trump, Putin) is an implicit admission of the failure of political processes to check and balance those with political power.
Yes, some of these events may end up with striking political theatre.
And it may well be that such formal processes are the only way to deal with politicians who share the famous description of Johnson as a “greased piglet”.
But this shift is not a good thing on scale.
For soon we may go from a handful of greased piglets to hundreds if not thousands, with normal forms of accountability finally being accepted as redundant.
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To quote Pankaj Mishra in May 2022: “On closer examination, Johnson’s survival skills amount to little more than shamelessness. He owes his resilience in disgrace to Britain’s debased political culture and institutions such as the British parliament, the media, the London police and the Conservative party. … “Everyone in Britain still acts as if this was a normal government. Instead it is a project of deliberate destruction, of laws, of institutions, of anything that stands in the way of a PM who just doesn’t want to be held to account.” ”
https://www.bloomberg.com/opinion/articles/2022-05-25/after-partygate-uk-voters-should-end-boris-johnson-s-antics
There have been multiple failures of checks and balances, but ultimately perhaps we should blame the voters for letting such charlatans get into position of power?
True, but the issue is compounded by the stealth-degradation of the notion of separation of powers, which allows political hucksters to flourish.
Well, the piglet is squealing . Here is his very lengthy evidence.
* https://committees.parliament.uk/writtenevidence/119498/default/
To summarise, as Bart Simpson said, “I didn’t do it. Nobody saw me do it. You can’t prove anything.”
It this were a civil court process, I think the general rule is that witness statements should be exchanged much earlier than the day before a hearing, and supported by a statement of truth. But of course the privileges committee is not a civil court.
I had not noticed until today that a second so-called “opinion” has been issued by Lord Pannick and Jason Pobjoy in this matter and was published by the Privileges Committee on 3 March.
* https://committees.parliament.uk/publications/34218/documents/188233/default/
This second “opinion” is itself in response to the Committee’s comments published on 26 September 2022 on the barristers’ first “opinion” published on gov.uk earlier that month.
* https://www.gov.uk/government/publications/legal-opinion-by-lord-pannick-qc-relating-to-the-privileges-committee
* https://committees.parliament.uk/publications/28816/documents/173975/default/
The second opinion helpfully concedes that Johnson would be misleading the House of Commons if “he later discovered that what he had told the House was incorrect and he knowingly failed to correct the record”.
Johnson’s evidence now acknowledges that his statements in the House from December 2021 were misleading, but he asserts that he made “a full correction of [his] honest but inadvertently misleading statements … as soon as reasonably possible”. On 22 May 2022. After the Sue Gray report. Some five months later.
The second opinion makes a number of other points:
* In their view, contempt by misleading the house requires intention (that is, an intention to mislead). The committee seems to disagree.
* They disagree on the standard of proof, contending that allegations need to be shown to be “significantly more likely than not to be true” (not just a balance of probabilities).
Their first opinion complained about the potential for anonymous allegations, or Johnson being required to a case which has not been detailed. Neither appears to be relevant.
But they repeat their contention that Johnson should be represented by counsel and allowed to cross-examine witnesses, as if the committee were a court of law.
This is another example of this very peculiar form of legal “opinion”. I look in vain for places where the two counsel are giving the benefit of their professional judgement on any undisputed or uncertain questions of law, based on known or assumed facts. Not simply advocating for or making submissions on behalf of their client.
“To summarise, as Bart Simpson said, “I didn’t do it. Nobody saw me do it. You can’t prove anything.””
If it weren’t so sickening, Johnson here is like Just William.
As in : “Why can’t grown-ups just give me stuff, let me do what I like and then go away A LOT?”
Yes but I was thinking more of William’s genius in twisting logic so he comes up trumps. Though of course we warm to William who is somehow innocent within his guilt – because guileless and not seeking power. Johnson’s “genius” is concoctedand paid for by him.
I’m afraid I can’t really agree with you here. Politics will always be about opportunism and expediency; in the real world, you can’t force people to do the ‘right thing’. Thus it’s sensible and correct that the law is used to rein in politicians’ excesses and abuses. If anything, I’d have said it needs to be applied more frequently in order for politicians to make decisions in the knowledge (or perhaps fear) that they can and will be held to account.
Politics in mature democracies has never been as bad is it has become this century, and so David’s lament is valid. If democracy were working properly in the United States and Britain, there would be no need for such extreme measures. Politicians have always been known to shade the truth, but outright lying and then doubling down has become the norm. They get away with it. You can’t get away with this under oath, but even that may not ultimately be enough to bring about the end of Donald Trump’s political ambitions when large portions of the electorate will never accept the truth.
It would be interesting to know what, from your point of view, the correct method of dealing with such things politically would be.
For Johnson and Raab, I assume the Conservatives dumping them from the party.
Republicans can’t dump Trump, as far as I can tell. Possibly they could change their rules to allow them to exclude someone from running as a candidate for them. And he’s being found guilty of crimes, which is what should happen to anyone who breaks them.
Putin is definitely a case where the system is so corrupt that no political solution can be found. Hopefully at some point their systems can be reformed and strengthened. And we won’t mess it up the way we did when the USSR ended.
Great post title! Brought me back to listening to indie bands on Peel in the ’80s, e.g.: https://en.wikipedia.org/wiki/10,000_Maniacs
I think your comment about political theatre lies at the heart of this.
“Something must be done” goes up the cry, or perhaps “something must be seen to be done”.
We have quite a long history of quasi-legal parliamentary actions being taken to appease opponents of a regime.
I seem to distantly recall the trial and execution of Strafford by parliament under Charles I was one such case.
I’d love to think the execution of Admiral Byng was another such case – but I must confess I don’t know the details of the trial beyond his ineptitude in battle.
More recently, we can discuss whether favoured politicians who repaid their expenses were more deserving of mercy than those were not tipped off by the Daily Telegraph.
Surely Byng was the one executed “pour encourager les autres”.
In that respect he was the forerunner of many unfortunate men in the trenches 1914-18. A battlefield, rather than political, expedient.
In the UK and US we have democratic systems that have been weakened to the point of collapse; the Russian democratic system was disabled in early infancy.
The best law and lawyers can do, I think, is to provide a very belated and limited accountability long after the “crimes” have taken place. It’s still a better approach than the only other alternative – removing (some of) the wrongdoers by lynching them.
Forgive me if I’ve misunderstood, David. But if Trump is indicted, it will be in relation to allegedly committing crimes. And what manner of accountability should there be for that, other than the criminal justice system?
The greased piglet already has a litter of eight. 6,000 might be stretching it a bit far, even for him
You say, “legal and political processes should be distinct and separate”. I agree, but I don’t think that’s a universal rule or that the legal system should always be debarred from entering the political process. I would re-state your rule as “legal and political processes should be distinct and separate and any practitioner of either should practice by the rules”.
What happens if a politician doesn’t practice by the rules? I’m not sure beyond reasonable doubt about Raab, but it seems to me Johnson, Trump and Putin have demonstrably, in different ways and to different extents, failed to do so. Should a political system create its own completely separate system for dealing with politicians that fail in that way? Surely not. Politicians should be subject to the same legal norms as the rest of us. If they have taken on functions that the rest of us haven’t they should be subject to the legal obligations that go with those functions. They should be liable to legal sanctions that, according to the law, result from taking on their functions but not discharging the obligations. Putin is likely to avoid personal responsibility. If Trump or Johnson, or both of them, have by practising politics, taken on duties the rest of us don’t shoulder, and have failed to discharge them, they should be liable to legal scrutiny and legal punishment. A country where that consequence is excluded seems to me not to be one governed by the rule of law.
Those of us who accept the concept of democracy face a separate problem: democracy, even in both cases, US and UK, very flawed democracies, has led a People who ought to have known better to elect wholly unworthy representatives. We need to address that, understand why it has happened (this is not the first time) and try to eliminate the cause, so that democracy will produce worthy political leaders.
But let’s not throw out the rule of law.
Michael
You have the key – a failure of political process. Trying to use a legalistic process to fix a political process that does not want to be fixed seems unlikely to succeed. Legalistic quibbling merely allows greased piglets to get away.
Hard to see how to fix this. Public disgrace used to work. At one time the ‘no minister’ technique would usually work. We have put away the oaken block and axe. Perhaps a politicians driving licence might help, 12 points and you are out. But misuse – quis custodiet. A rerun of Northcote Trevelyan and ‘No Minister’ is my favourite.
Meanwhile I look forward to Baroness Casey’s efforts and see what does not come of them.
DAG; “ .. legal and political processes should be distinct and separate. Instead of this being a triumph of the forensic method, it is a failure of the political method. This is not a good thing.”
DAG; “ .. it may well be that such formal processes are the only way to deal with politicians … But this shift is not a good thing on scale. For soon we may go from a handful of greased piglets to hundreds if not thousands, with normal forms of accountability finally being accepted as redundant.”
I was ‘with’ you for the first part of your argument but not the last because this is the reality which exists now. It may not have been beforehand but circumstances have changed. Surely it’s better to address the facts as they are now rather than cling to an inaccurate, perhaps wistful, view of what used to be but is no longer the case? Can’t begin to solve a problem without admitting and defining what the problem IS;
– We are witness to a multitude of greased piglets; almost all the normal forms of accountability in political and economic life for leaders have become redundant.
I’m grateful that we have not run out of legal and quasi-legal methods of holding our leaders accountable, as imperfect as they may be, because it staves-off the time that the ONLY method of accountability left would be violence. Widescale, damaging and dystopian violence by the populace at large because we all feel that institutions of accountability to each other as a society have failed.
History teaches us that is never a prospect to be welcomed.
The Tyranny of Unintended Consequences
If the head of government believes they will be held to account upon leaving office, then they have an overwhelming incentive to ensure that they never leave office
I agree that this process isn’t ideal, but this has been brewing ever since the leading lights of western democracy did to the Middle East what they did in the mid-00s.
Blair, Bush and members of their administrations experienced few, if any, negative consequences for their illegal acts. Indeed, they had all the self-interest to ensure those mechanisms were weakened so that they themselves could not be held accountable by them later.
That created the circumstances in which Trump and Johnson were able to triumph for a time. How many times have you heard “well, all politicians lie anyway” as a reason given for supporting them?
Always thought provoking, but in this instance there is a gaping hole where one might expect a hint at a solution. Taking a shotgun to the whole system is fine – if it makes anyone feel better – but taking aim at a particular barn door is likely to be more constructive.
To my mind, the processes described for dealing with these recalcitrant politicians and their different offences are the best under all the circumstances of each case: they all have their specific difficulties in reconciling considerations of justice, separation of powers, embedded partisan interests, moral or criminal culpability, sovereignty of Parliament, jurisdiction, public and media interest; statute, custom and practice. There are a number of useful processes ranging from fully judicial through the quasi-judicial to the ad-hoc provided rules of Natural Justice are always followed