The unwelcome weaponisation of police complaints as part of ordinary politics

31st May 2024

Here is a news snippet that showed the sheer dislocation in our politics.

It is from 2022. You may remember the context.

There was always something that seemed wrong about “Beergate”.

But one has to be careful to identify exactly what was wrong.

The proposition that politicians were subject to the law is one which should get universal assent in a liberal society.

And that the course of police investigations should not be subjected to political interference is another fine principle.

Instead the problem was about how the complaint and investigation was weaponised politically.

It appeared that politically motivated complaints to the police were to become a feature of our politics.

And that did not seem right.

Less obvious, however, was what to do about it.

For, as this blog has averred before, not every political problem has a solution.

“Beergate” was not to be a one-off.

The tax affairs of Angela Rayner also led to a politically motivated complaint to the police and to a clamour on newspaper front pages.

And, just as with “Beergate”, the serious allegations were found not to warrant any further action.

But again it is less obvious what formally can be done about it. What law could be enacted or policy adopted to make sure It Never Happens Again.

This week at Prospect (click and read here) I set out that any solution will have to come from the world of politics and not the legal system.

There should be a self-denying ordinance: a sense that this is not acceptable politics.

And, if that does not work, we can only hope the tactic becomes seen as ineffective, and it falls into disuse.

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Thoughts on the calling of a general election – and on whether our constitutional excitements are coming to an end

29 May 2024

When the general election was suddenly called I was in the middle of writing about another legal topic for Prospect.

And then when the current Prime Minister squelchingly announced a general election, I was asked if I could quickly write about that instead.

My first thought was that this new general election told us something about the unintended consequences of constitutional reform – for the Fixed-term Parliaments Act 2011 was supposed to put an end to this sort of thing.

Had the Act had its intended prime effect, we would still be 4/5 way through the 2020-25 parliament, which would have followed the 2015-20 parliament.

But, of course, that did not happen.

Instead of an orderly and leisurely succession of predictable five-year parliaments, we have had consistent political chaos and constant constitutional drama.

We had a general elections in 2017 and 2019 by sidestepping (in two different ways) the primary object of the 2011 Act, and then the Act itself was repealed in 2022.

That is not to say the Act was ineffective: it certainly had effects.

Indeed the extraordinary events of late 2019 – where Parliament insisted with the Benn Act that there could not be a no-deal Brexit which, when enacted, enabled the then Prime Minister to get opposition support for a December general election – only make sense by knowing the constraints of the 2011 Act in stopping that Prime Minister calling a sooner election.

And the course of that 2017-19 “hung” parliament – a much underestimated parliament, though it certainly frustrated those who dislike having parliamentary checks and balances on executive power – can also only be understood by knowing that a Prime Minister was not able to easily call another general election.

The Fixed-term Parliaments Act 2011 certainly was an effective piece of legislation, they were just not the effects that were intended.

But writing about that 2011 statute did not seem enough to carry a Prospect article.

I was stuck.

And then…

…and then this was tweeted – and widely retweeted:

It is safe to say that in thirty years of thinking about constitutional issues I have never considered such a question: could a general election, once called, somehow be un-called?

What a notion!

Constitutional law should not be this fun; constitutional law should be dull.

And not only had I never considered it, I also could not think of an immediate answer to the question.

The historian and commentator Robert Saunders mentioned that in 1831 the following happened:

Perhaps a vote like this could have been passed by a majority of the House of Commons, but it would have had to have been done very quickly.

And it would have required, well, a majority of the House of Commons – and those government backbenchers aghast at the sudden general election are presumably a minority.

So that was not going to happen.

The only other realistic way would be for there to be a change of Prime Minister – or a change of mind by the Prime Minister.

And that would all have to been done before parliament dissolved tomorrow (30 May 2024).

That has not happened.

And it is difficult to think how it could have happened, for there would not have been enough time for a vote of no confidence and a new election for a new Conservative leader. It also assumes that the King would have accepted the new leader immediately as Prime Minister.

It is a measure of how strange the last few years have been that such a possibility was canvassed.

Another way for the general election to be un-called could be perhaps a judicial review going even further than “Miller II” – which merely quashed a prorogation – that attacked the very proclamation of a general election.

That would have been a breathtaking (and rather entertaining) invitation to the courts for an extension of the remit of judicial review – and surely those government supporters who were upset by the Miller cases would not resort to such an ambitious and bold legal claim.

And now, we will perhaps never know how such an un-calling of an election would be done in practice.

As I mention in the Prospect article (please click and read), it may be that with this general election our period of constitutional giddiness is coming to an end.

Or it may be that there are new constitutional excitements ahead: the moves towards Irish unification and Scottish independence, towards a closer and more sustainable relationship with the European Union, and towards a reformed House of Lords. There may even be scope for a re-examination of the role and powers of the Crown as and when there is a new monarch.

So a “brace” – if not a “brace, brace”.

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Another inquiry report, another massive public policy failure revealed

21st May 2024

There are so many governmental scandals that it is difficult to keep up with them all, and one horrific scandal this blog has not before covered is about contaminated blood.

This week this inquiry report was published, and even a cursory view of its conclusions is evocative of the public policy failures that have been covered here.

There are two points in particular which will stand out for followers of this blog.

The first point is that it appears that officials did not tell ministers everything. You may recall that this was also the problem with the Post Office horizon scandal. You may also recall that the Afghan war crimes inquiry has also revealed that officials were not forthcoming – and even obstructive – even when there was a determined minister seeking explanations.

It is this disconnect – if not breakdown – between ministers and departments that undermines and indeed discredits the old doctrine of individual ministerial responsibility (which I also wrote about at Prospect).

A minister cannot be meaningfully responsible to parliament (and thereby to the media and the public) if they themselves are given duff and misleading information. As the techies among you will know: GIGO – or garbage in, garbage out.

And this leads to the second point: this inquiry is yet another example of an exercise in accountability that should and could have been undertaken by parliament and in real-time. (My Prospect piece on this is here.)

Instead, and long after many of the key events, it has been left to an inquiry to show what happened at the material times – and what went wrong at the material times.

As such, this is another example of failure by our parliamentary system to provide proper, real-time scrutiny.

Parliament is simply not well-equipped to force information and materials out of an unwilling government. Parliamentary questions are easily batted back; select committees have few real powers to prise out documents.

And our media is also not well-equipped. Press offices are unhelpful when the queries are unwanted; freedom of information in the United Kingdom has no real teeth. A great deal of press scrutiny – perhaps too much – is dependent on briefings: information is disclosed only when it suits someone in government.

How many more inquiries – with damning detail and revelatory narratives – are we to have before we realise that it is parliament that needs significantly strengthening?

Parliamentarians should have access to coercive powers to compel evidence from ministers and officials which are no less powerful than those available to public inquiries.

And parliamentary questions as a norm should be addressed to and answered by the actual officials responsible, rather than the evasive and convenient fiction that ministers are responsible for entire departments.

But all this would require taking parliament seriously.

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On how regulating the media is hard – if not impossible – and on why reviving the Leveson Inquiry may not be the best basis for seeing what regulations are now needed

Star Wars Day, 2024

I once came across a quote in a history book which I have never been able to re-find. It was from an acquaintance of I think Lord Randolph Churchill (Winston’s father), or perhaps of Benjamin Disraeli, and it was along the lines of:

“Dear Sir, you do not believe that there are actually solutions to political problems?”

This astonished admonishment from a Victorian politician has lingered.

There is a conceit in the notion that just because a problem can be stated it thereby can be solved. Maybe this fallacy comes about by reason of human optimism, that articulating a problem means that somewhere somehow it can be remedied.

If course, stating a problem accurately and plainly is a necessary condition of it being solved.

But it often is not sufficient – at least not in terms of public policy.

And one problem is how, if at all, the media should be regulated.

Not long ago the media were far easier to regulate.

This was because there were fewer media entities to regulate and the ability to publish and to broadcast was more restricted.

Indeed, until the 1990s it was was actually quite difficult for most people to publish or broadcast to the world – or even to circulate things beyond your immediate circle or place. You had to go through gatekeepers who had a near-monopoly of the means of publication and broadcast: newspaper titles, publishing housed, broadcast stations.

From time to time there would be the spirited eccentrics who would, say, set up up a pirate radio station in the North Sea or self-publish books and pamphlets. But such self-publication was derided as a “vanity”.

(Little did they realise the upcoming relentless mass self-publications of social media.)

That such self-publication was possible at least in theory was always an important principle- indeed, it was the original meaning of the phrase “freedom of the press” (a 2012 New Statesman post on this is one of my favourite pieces).

But few if any sensible people had a press at home, even though could have one.

Now most people have access to the means of publishing and broadcasting to the world.

The device you are reading this on is no doubt capable of such worldwide publication or broadcast, at least via a social media platform.

And just as it was once odd to possess a personal printing press or pirate radio ship, it is now similarly odd not to personally possess something capable of far greater publication or broadcast.

For want of a better word, this is an information and communications revolution. A fundamental shift, comparable to the first writing and alphabets, or the invention of movable type.

And the implications of this revolution are still being worked out – if they can be worked out at all.

How – if all – can media be regulated now that everyone is a potential publisher?

My day job is as a media and communications (and commercial) lawyer – constitutional law is a mad hobby – and I see everyday the attempted use of law and policy to try to make people and companies do things (and not do things) which they otherwise would not do (or would do) but for that law and policy.

Such regulation is hard. Sometimes it is ineffective. Sometimes it is ignored. Sometimes it has unintended effects. Sometimes, even, it works.

Turning to the wrongful conduct of parts of the news media in the first decade of this century (and before), there is no doubt bad things happened – and there is also no doubt that we do no know the extent of the bad things that happened.

And the one thing that can be correctly said of the Leveson Inquiry – and of the criminal and civil litigation that followed – is that a lot of these bad things were placed into the public domain which otherwise would not have been placed into the public domain.

This was a boon for the public understanding of the news media.

But.

The purpose of the Leveson Inquiry (of which only one of two parts took place) was to use that investigation for the purpose of proposing a new regulatory model.

And this is where there is maybe a category error.

For what happened in the UK news media before around 2012 is not a good data set for regulating the news media in 2024 and beyond.

Indeed, it is far harder to say what is now news media. You cannot walk down Fleet Street and its environs and point, saying “there” and “there” and “there”.

For example, if a freelance journalist has a social media following of hundreds of thousands they often can have a bigger “circulation” than any title they work for. In those circumstances, what practical purpose would there be in just regulating the latter? And if you try to regulate the former, at what point do you stop trying to regulate everyone?

Anyway, please now click here and read my article at Prospect on whether “Leveson 2” should take place.

And tell me and other readers of this blog what you think.

For, dear Sirs and Madams, you – unlike me – may believe that there are actually solutions to political problems.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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