Author: David Allen Green

The polity and the media

9th February 2022

There have been various communications revolutions in human history.

One, of course, is the development of human language – though we are still working out the extent to which this actually separates us from other animals capable of complex communications.

Another was the notion – which we appear not have had for most of the history of our species – that language can be written down and thereby stored or sent long distances.

This notion was instrumental in the development of more complex societies, as it meant for example than laws could be recorded and conveyed other than by oral tradition and transmission.

And about five hundred years ago, the development of movable type meant that things could get published and circulated on a scale that would not have been possible in days of manual reproduction of texts.

The most recent radical change in communication is one with which many reading this blog will be familiar.

In our lifetimes, when we were young, it was difficult-to-impossible to communicate with and publish to the world – unless you went through the gatekeepers of established newspapers, publishing houses or established broadcasters.

Yes: you could, perhaps, publish a vanity book, or pamphleteer outside McDonalds, or launch a pirate radio station in the North Sea.

But short of such extreme exertions, it was hard – as recently as the 1990s – to publish or broadcast whatever you wanted to the world.

And now, by reason of the internet and easy-to-use platforms, anyone with an online connection can, in principle, publish or broadcast on the widest possible scale.

We are now perhaps so familiar with this change that we forget how radical a shift this is.

And we are still reckoning the consequences.

One consequence is that our conventional ideas of politics and media are shifting – and we do not know for certain what will happen next.

The lack of gatekeepers on political discourse has a relationship with the populism-supporting figures such as Johnson and Trump.

Traditional mediating vehicles of transmission and participation – say, political parties and newspapers – are now in many respects redundant in these days of direct connections.

The law itself struggles to keep up – and our laws on social media are a hotchpotch of the unrealistic and outdated, but these laws also have no obvious alternative.

One hobgoblin of law and policy thinking is that nothing is new – we can see that the same will happen as before, as long as we know the right precedents.

How will our polity will be affected by these fundamental changes in politics, media and communications?

Will it mean a more liberal future?

Or a more authoritarian one?

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What is wrong about the Cabinet Office

8th February 2022

From an earnest perspective, there are three ‘great offices of state’ – the Exchequer, the Foreign Office, and the Home Office.

And from an ironic perspective, there are also three ‘great offices of state’ – Charles Dickens’ Circumlocution Office, Yes Minister’s Department for Administrative Affairs, and our very own, real-life Cabinet Office.

The Cabinet Office is where policies and reforms and ideas – and careers – go to die.

Why is this?

Part of the reason is that the department itself has no real gravity in Whitehall – major policy is made elsewhere; other departments own major external relationships; and it is not a large spending department.

Any Cabinet Office influence within central government rests upon persuasion and coordination, rather than because of any inherent power.

When I was a civil servant there was a joke: if a senior official is invited to to a meeting at Downing Street, then that official attends; if invited by the Treasury, then they send a deputy; and if invited by the Cabinet Office, they send an apology.

But again and again there is some whizz-bang idea about cross-government coordination, and the implementation of that policy goes to the Cabinet Office.

And you then rarely hear about the policy thereafter.

From time to time you also hear that the Cabinet Office is to be ‘beefed up’ – but usually that lasts as long as it takes to read the relevant news article.

In essence, it is a department which gives the illusion of things being done, rather than the hard crunchy slog of policy formulation and implementation in the larger departments that actually do things.

(The Cabinet Office is also woeful in respect of Freedom of Information.)

And so it is appropriate that today’s reshuffle – conducted by a weak Prime Minister with no serious notions of policy or reform – simply led to yet more ministers at the Cabinet Office, at least three of which will now “attend cabinet”.

Both Dickens and Sir Humphrey would understand such appointments only too well.

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Why the road to Brexit began at Maastricht

7th February 2022

Today is the anniversary of the Maastricht treaty:

And so I tweeted the following:

https://twitter.com/davidallengreen/status/1490611449621884932

Being Twitter, the consequence of such a tweet was, of course, that I was told that the proposition was wrong – and that something else was the start of the road to Brexit.

(Click on that tweet to see those alternative views.)

But this post sets out, in brief, why I think that the proposition is sound.

Why the road to Brexit began at Maastricht.

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Let us go back to “1992”.

No, not the actual year.

But the once-pervasive campaign to get people ready for the completion of the single market.

It was to the date by which the integration put forward by the Single European Act was to be finally in pace.

As far as I can recall there was little political opposition to “1992” in the years leading up to that date.

Indeed the single market was a thing proudly promoted by Margaret Thatcher and practically implemented by another Conservative politician, the European Community commissioner Arthur Cockfield.

But.

Before we ever got to either “1992” or, indeed, 1992, there was already another determined push towards European integration.

This push was what resulted in the European Union – which replaced the European Community – at the treaty of Maastricht.

This movement has a quality different to “1992”.

In the United Kingdom – and elsewhere – this push was contested.

There was little of the general consensus with which “1992” was accepted and promoted.

Indeed, the passage of the legislation in the United Kingdom under John Major was politically controversial.

There is a direct line between the Maastricht rebels of the early 1990s and the post-2015 Brexit movement.

(I know this, as I was research assistant to one Maastricht rebel MP who also was a MP who voted in favour of Brexit.)

Maastricht created an organised reaction that – in my recollection and view, as someone there at the time – had simply not been there before with “1992”.

And the reaction, in turn, of those in favour of integration was, in my view, also polarising.

There was a range of ‘pro-European’ clichés – about not missing trains or not being at top tables, and so on – that did nothing to make a substantive or positive case for integration.

The Maastricht treaty also (purportedly) expanded the ‘competencies’ of the European institutions into areas such as justice and home affairs, and foreign and defence matters, which has not immediately obvious connection with the single market.

And in respect of these competencies, the United Kingdom government (and some other member states) then got into the habit of picking a choosing what areas to opt in or out of.

This half-hearted approach also can be seen in the opt-out from the Eurozone – membership of which many insisted was essential for participating in the single market.

(Though, even now in 2022, not all the countries in the single market are part of the Eurozone.)

So not only did Maastricht create the modern European Union it also enabled the semi-detached policy approach of the United Kingdom and the organised political opposition to further integration – both of which were significant after 2015 for Brexit.

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My recollection is that at the time I thought United Kingdom membership of the European Union was not sustainable.

I did not think the United Kingdom would ever go full-heartedly into accepting European Union competencies outside the single market, or that the United Kingdom would accept the single currency as being essential for being part of the single market.

I also did not think the approach of ‘pro-Europeans’ would ever win over those who developed their criticisms of the European Union in the Maastricht debates.

My view was (and is) that it would be better – and far more sustainable – for the United Kingdom to have an association agreement with the European Union.

After the early 1990s my views mellowed – and it seemed by 2015 that any departure would not be worth the time and energy.

That a cost-benefit analysis of Brexit would show more costs than benefits.

Others did not – and they kept pushing and pushing until they got a referendum and a departure.

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Had things stayed with a “1992” single market in a steady state,  Brexit would have been more unlikely.

Of course, there was never going to be such a steady state – the belief in an ‘ever closer union’ was still then a thing.

It is not now really a thing, ironically, as there has not been a major European Union treaty since Lisbon in 2009 – and it looks like there will never be another one.

Indeed, the United Kingdom departed the European Union just as the belief in an ‘ever closer union’ ceased to have any actual political force.

All this said, there was no inevitability that there would one day be Brexit – just as there is no inevitability about the destination of any path.

Had things gone differently in 2015-16, it is conceivable that the United Kingdom would still be a member of the European Union – though the populism of Farage and others would still be pushing for an effect.

But if the path to Brexit can be said to have started anywhere, I think it was Maastricht.

So that is my view, as someone who followed both Maastricht and Brexit closely.

What do you think?

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Did you know that there is a Parliamentary Ombudsman?

 

6th February 2022

Did you know that the United Kingdom had an ‘Ombudsman’?

And if you did know, did you know what this Ombudsman can and cannot do?

I have been looking into this strange office for a while now, at the invitation of campaigners.

And the more I look at this curious office, the more confused I become.

This is because it sits very oddly within our domestic legal and administrative system – and is, in effect, a 1960s transplant from another constitutional regime.

The system is almost guaranteed to not fully satisfy anyone who uses it – and, indeed, there seems to be a number of people who are very unhappy with it.

This post is an introduction to the legal basis of the Ombudsman system – and I intend to further posts look at particular problems.

This is because it offers a fascinating case practical study of transparency and accountability (and the lack thereof) in law and policy.

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The notion of an Ombudsman comes from Sweden, and it was a popular and fashionable notion for administrative reformers after the second world war.

The idea was that the Ombudsman would help promote good government by investigating and thereby checking ‘maladministration’ – which is itself a problematic concept from a lawyer’s perspective.

(Is maladministration an unlawful ultra vires act? Or are there acts that are lawful but also maladministration? Who knows.)

By the 1960s – when administrative law in England and Wales was still underdeveloped – having an Ombudsman seemed like an idea that had come.

And so we had one – and then a number.

The primary Ombudsman in the United Kingdom, is the Parliamentary Commissioner for Administration.

This office was established by a 1967 Act of Parliament.

The remit of the Ombudsman is that it can, on referral by a Member of Parliament, “investigate…[an] action taken in the exercise of administrative functions…where…a member of the public…claims to have sustained injustice in consequence of maladministration”.

In some ways, it is a powerful office.

Very powerful.

The Ombudsman can only dismissed by an address of both houses of parliament.

The Ombudsman can require ministers and government departments to provide information and documents – even ‘secret’ information and documents.

It is even a criminal offence to obstruct the Ombudsman.

And the Ombudsman can, after an investigation, place a critical report before parliament that has full legal privilege.

With these legal superpowers, the Ombudsman would be a legal superhero equivalent of any other something-man or -woman.

Such a figure, given these powers, could be expected to be central to discussions about law and policy in central government.

But.

To go back to the top of the post: did you even know that the United Kingdom had an Ombudsman?

Have you ever read an Ombudsman report – or even visited its website?

And here there is a paradox – if not a contradiction.

For, at a time where there seems more and more maladministration, the Ombudsman has almost no public profile.

On the assumption that there is maladministration in central government, and given the legal super-powers of the Ombudsman, why is the Ombudsman so little-known?

And is there a problem with the Ombudsman system, as critical campaigners aver?

Let’s find out in future posts – and your informed comments are welcome below.

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The strange constitutional situation if Johnson lingers on as Prime Minister

4th February 2022

The constitution of the United Kingdom is a strange thing.

As a matter of constitutional theory, it hands a Prime Minister with a substantive majority two powerful weapons: the royal prerogative (and associated patronage, such as appointing and sacking ministers) and the doctrine of parliamentary supremacy.

On the paper page of the textbook, there is little that would check or balance a determined Prime Minister unwilling to play along with conventions.

But.

The constitution of the United Kingdom also spits out Prime Ministers between general elections.

Indeed, since 1982 – forty years – more Prime Ministers have lost office between general elections than because of general elections.

Thatcher (1990), Blair (2007), Cameron (2016) and May (2019) all lost office between general elections, while only Major (1997) and Brown (2010) have lost office at a general election.

And this week just gone, it looked as if the current Prime Minister would also lose office – even though he won a thumping majority in 2019.

There is no doubt that he is politically weak – and the spate of recent Downing Street resignations do not signify anything positive for him.

And it is obvious that a significant number of his own parliamentary party do not want him as Prime Minister.

It would seem less than a majority of the Commons wants him to personally continue as Prime Minister.

Yet: is he constitutionally weak?

Can he hold on, if he is really determined to do so?

The obvious means of his departure would be a no confidence vote by the parliamentary Conservative party.

An alternative means would be – say as with Thatcher – that he realises he has little or no ministerial support and resigns – though this unlikely given the cabinet are perhaps the only ones who will support him.

If there is not a confidence vote by the parliamentary Conservative party – or if there is one, and he wins – then we would be in interesting constitutional territory.

The nearest examples I can think of are the minority administrations of Callaghan (in the period before 1979), Major (in the period up to 1997) and May (2017-2019) – where there were Prime Ministers in office but not with power.

Perhaps like Callaghan and Major he will linger on, even though there was not a majority in the Commons in favour of him personally remaining (as opposed to a majority in the parliamentary Conservative party).

Perhaps there could then be a parliamentary vote of no confidence – but it is difficult to see Conservative MPs risking a general election just to get rid of Johnson as leader.

So: it is not clear what will happen if he lingers on.

What do you think?

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Resignations – and reasons for resignations

3rd February 2022

Today there were various political resignations: at least two (at the time of writing) from Downing Street, and one in Northern Ireland.

Such resignations are political acts.

And as political acts they are significant.

By which is meant that they signify something.

Political resignations are often accompanied by express reasons.

These express reasons are also significant – for they also signify something.

But.

They may not signify the same thing.

They may not even be connected.

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One thing which a combination of a history degree, two decades’ practice as a lawyer, and (too much) time as a law and policy commentator has taught me is…

..that the reasons for an action and the reasons given for an action do not necessarily connect.

Indeed, the political action and the documented reasons for that action may have nothing directly to do with each other, and are intended as performances to different audiences.

The important thing is to stay sceptical of what people want you to believe about what they do.

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The current political drama – and the question of a ‘written constitution’

2nd February 2022

Every time there is some political drama there will be those who will make a critical comment and then add “and that is why we need a written constitution”.

They will. no doubt, nod as they type this, and many will also nod as they read it.

There is no political problem imaginable to which somebody will not say “and that is why we need a written constitution’.

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In my commentary I have been sceptical of this stock response.

So critical that some companion commentator will make the accusation that I am against “written” – that is codified – constitutions.

“Look at all this,” they will say as they survey that day’s political devastation, “look at all this, how can you be against a written constitution?”

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As we look down together at the smoking ruins left by that day’s political events, I wonder if they have a point.

But this is what I would mutter in response :-

“I am not – actually – against a codified constitution for the United Kingdom.

“Not in principle.

“My two primary reservations are that, first, there is no mechanism – given the doctrine of parliamentary supremacy – for enacting or entrenching such a constitution.

“It would only be an Act of Parliament away from repeal or wrecking amendment.

“There is therefore no point in such make-believe.

“And second, a codified constitution can entrench executive power and make it more difficult to check and balance that power.

“A written constitution in our current post-Brexit hyper-partisan politics would simply be gamed by the authoritarians.

“Codified constitutions are not necessarily liberal and progressive devices.

“A codified constitution is not a panacea.”

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My companion would shake – not nod – their head and say :-

“Fine – you say you are not against codified constitutions in principle.

“But.

“Just look at all this – the collapsed institutions and smouldering conventions.

“The disregarded checks and toppled balances.

“This is the direct consequences of there not being any codification.

“The knaves can do as they wish, and the fools cannot stop them.

“What you get wrong is that you miss that un-codified constitutional arrangements can also be good and bad.

“And what we have here is, in practice, bad constitutional arrangements.

“Un-codified constitutions are also not necessarily liberal and progressive devices.

“An un-codified constitution is also not a panacea.”

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My wise companion may have a point – and their views are unsettling, even disconcerting.

The problem of enactment and entrenchment would remain – well, as long as our national constitutional faith is in the doctrine of parliamentary supremacy.

But an un-codified constitution requires – instead of some portable document – a general sense of constitutionalism.

By which I mean: a sense that there are political rules which are more important than party advantage and personal advancement.

And if constitutionalism no longer has any purchase, then I have to concede an un-codified constitution can be just as illiberal and reactionary as any executive-biased codified constitution.

*

“Hmmm,” I say to my wise companion, “you may have a point.” 

We then watch as the surviving political debris all crashes to the ground.

“Brace brace,” they say.

 

 

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A “nice” parliament?

1st February 2022

Today the speaker of the House of Commons said he would like parliament to be “nice”.

For this, and for insights generally, listen to this clip to the end:

Like courts, parliament is a place for conflict and for those conflicts to be resolved.

And, again like courts, parliament has developed conventions and an etiquette for smoothing the jagged edges of that conflict.

“The honourable member” is the parliamentary equivalent of “my learned friend”.

Courts – at least civil courts – have also rules on when a person can be accused of dishonesty.

It is not an allegation that can be made by a lawyer lightly.

But it is an allegation that can, if there is evidence, be made in certain circumstances.

In parliament an allegation of dishonesty cannot be made – at least in debate.

An allegation of dishonesty has instead to be made in a substantive motion – see the commentary here.

As the historian Robert Saunders avers, this rule against accusing in debate other members of parliament of dishonesty was part of a wider understanding:

So we now have the ridiculous situation where nothing practical can be done to stop the Prime Minister – or any other member of parliament – from being dishonest…

…and if another member of parliament – grandstanding or otherwise) points this out in debate, it is that other member of parliament that is thrown out of the house of commons.

One can understand how the rules of the house of commons came to end up like this.

But that does not make the rules seem any less daft.

The solution, however, is not “niceness”.

Politeness, yes, and decorum and respect – just as courts (usually) have politeness and decorum.

But courts – while usually calm and polite and respectful – are not “nice”.

Courts can be places of horrible and raw human drama and conflict, where often difficult decisions have to be made that will, in turn, often ruin the lives of the parties involved.

To regard them as “nice” is to confuse form with substance.

A parliament also has to deal with often difficult decisions that will ruin – or even end – the lives of people at home and abroad, sometimes millions of people.

A parliament is a place of conflict and high tension – with immense consequences for real people.

As such, like a court, it is sensible to take off the rough edges of conduct and vocabulary, so as to take the heat and aggression out of exchanges.

But the underlying tensions will still be there – and these tensions need to be recognised if they are to be resolved.

Those tensions cannot be cured by “niceness” – and, indeed, a refusal to recognise those tensions risks turning those tensions into contradictions.

And that will not help anybody.

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Sue Gray’s time bomb – why this “update” means more trouble for the Prime Minister

31st January 2022

An “update” of the Sue Gray report was published today.

It did not say a lot – but it said enough.

Any competent close reading of the update would indicate that the final report will be even worse for the (current) Prime Minister.

There are (at least) three “gatherings” under criminal investigation that the Prime Minister either attended or knew about.

And for there to these gatherings to be a police matter means there is already evidence of serious and flagrant breaches.

And there are nine other gatherings to be investigated by police.

Given that the report – even in these stymied conditions – was able to say the following, this could not be more serious for the Prime Minister:

“ii. At least some of the gatherings in question represent a serious failure to observe not just the high standards expected of those working at the heart of Government but also of the standards expected of the entire British population at the time.

“iii. At times it seems there was too little thought given to what was happening across the country in considering the appropriateness of some of these gatherings, the risks they presented to public health and how they might appear to the public. There were failures of leadership and judgment by different parts of No 10 and the Cabinet Office at different times. Some of the events should not have been allowed to take place. Other events should not have been allowed to develop as they did.”

Accountability for these Downing Street parties – while everyone else was under strict lockdown – is only a matter of time.

That is why this report is a timebomb for Boris.

And in any sensible political system, the Prime Minister would now resign than let this timebomb explode.

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