Author: David Allen Green

Why the prime minister and other politicians should not be wearing police uniforms

7th December 2021

One of the wisest political decisions in the inter-war years was to ban political uniforms:

They knew in the 1930s that the combination of uniforms and democratic politics is not a happy one.

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This blog has previously been critical of the Home Secretary for wearing an especially designed police uniform and attending a police operation:

Not even Winston Churchill wore a police uniform as Home Secretary in similar circumstances:

One perhaps hoped that the Home Secretary’s wish to dress up in police uniform was a one-off.

But no.

Now we have this spectacle:

We have the very Prime Minister wearing a police uniform.

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Does it matter?

Surely there is no harm in politicians wearing fancy dress?

And perhaps there is no harm in them doing so, as long as they look silly when they do.

But.

A distinction between the police and the civilian politicians to whom they are accountable is a good thing.

The blurring – even removal – of that distinction is, in turn, a bad thing.

The distinction is a mark that we are not a police state – and a mark that we are not in any way approaching a police state.

It is a line – a police line, if you will – which should not be crossed.

Even for promotional photographs.

And already we are at a stage where ministers are expected to have at least two United Kingdom flags behind them in official photographs and films.

That would have too seemed odd for a British politician not so long ago.

Visual rhetoric and paraphernalia is potent, sometimes toxic.

The legislators of 1936 were sensible enough to halt political uniforms in the United Kingdom before it went too far.

A similar prohibition on politicians in uniform would also be a wise move.

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How the Government both won and lost the Priti Patel High Court bullying case

6th December 2021

Today judgment was handed down in the case brought by the civil service union the FDA in respect of the Prime Minister’s determination that the bullying of the Home Secretary had not broken the Ministerial Code.

On the face of it, the government won the case.

And so this is what the press reported (and that is what time-poor news desks have published on their news sites):

But.

There are different ways that a government can win a case like this – and a closer look at the judgment shows that in substance this is not a welcome decision for the government at all.

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First, we need to know what the case was – and was not – about.

The case was not about deciding whether the Home Secretary is a bully or not – that was not what the court was being asked to determine, and the detailed evidence about bullying was not put before the court:

And, as that was not the question before the court, then the hot takes that the court has ‘cleared the Home Secretary of bullying’ are not and cannot be true.

The primary question before the court was whether it was open to the Prime Minister, given the information before him, to determine that there had not been a breach of the Ministerial Code.

The court found that, on this occasion, the determination that there had not been a breach of the Ministerial Code was one of the determinations open to the Prime Minister on the information before him.

But in reaching that conclusion the court made a number of points that were against the government – and these points may be significant in future cases.

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First, the court held that the Prime Minister’s determinations of the ministerial code were, in principle, amenable to judicial review by the courts.

The government made a spirited attempt to argue that the Prime Minister’s determinations of the ministerial code were not ‘justiciable’ – that the very subject matter was a no-go area for the High Court.

The court deal with justiciability in paragraphs 25 to 43 of a 61 paragraph judgment – about a third of the decision.

The court accepted that not every determination of the Code may be judicially reviewed.

And, of course, those judicial reviews which are heard by the court may not succeed (as with this case).

But there is nothing stopping a similar case on different facts succeeding just because of the subject matter.

That the court held that, in principle, prime ministerial determinations of the Ministerial Code are amenable to judicial review is a boon for transparency and accountability.

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Once the court had dismissed the government’s attack on justiciability, it turned to whether the Prime Minister had misdirected himself in applying the Code.

Here the key paragraph of the Code is:

“1.2 Ministers should be professional in all their dealings and treat all those with whom they come into contact with consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary colleagues and parliamentary staff should be proper and appropriate. Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated.”

The information before the Prime Minister was an advice from Sir Alex Allan, the independent adviser on the Code.

His advice included the following:

“My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect.

“Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“To that extent her behaviour has been in breach of the Ministerial Code, even if unintentionally. This conclusion needs to be seen in context. There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time.”

Having considered this advice, the Prime Minister’s conclusion was:

“Sir Alex’s advice found that the Home Secretary had become – justifiably in many instances – frustrated by the Home Office leadership’s lack of responsiveness and the lack of support she felt in DfID three years ago.

“He also found, however, that the Home Secretary had not always treated her civil servants with the consideration and respect that would be expected, and her approach on occasion has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“He went on to advise, therefore, that the Home Secretary had not consistently met the high standards expected of her under the Ministerial Code. 

“The Prime Minister notes Sir Alex’s advice that many of the concerns now raised were not raised at the time and that the Home Secretary was unaware of the impact that she had.

“He is reassured that the Home Secretary is sorry for inadvertently upsetting those with whom she was working. He is also reassured that relationships, practices and culture in the Home Office are much improved.

“As the arbiter of the code, having considered Sir Alex’s advice and weighing up all the factors, the Prime Minister’s judgement is that the Ministerial code was not breached.”

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The FDA’s claim was that, given Allan’s advice, this was not a conclusion that the Prime Minister could have legally made.

Here paragraph 58 of the judgment is important about the Prime Minister’s conclusions:

In other words: because the Prime Minister did not say Patel was not a bully, it must be that he either accepted Allan’s advice or did not form his own view.

Had the Prime Minister explicitly rejected Allan’s advice that it was bullying then it would have been a different legal situation.

The judgment then goes on in paragraph 59 to the other factors considered by the Prime Minister – it is not a paragraph easy to follow in one go, and may require re-reading:

The essence of the paragraph is in the sentences:

“In that context, the statement that the Prime Minister’s judgement was that the Ministerial Code was not breached is not therefore a finding that the conduct could not be described as bullying.

“Rather, it is either a statement that the Prime Minister does not consider, looking at all the factors involved, that it would be right to record that the Ministerial Code had been breached, or alternatively, that the conduct did not in all the circumstances warrant a sanction such as dismissal as it did not cause the Prime Minister to lose confidence in the minister.”

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The Prime Minister can consider himself very lucky to have won this case.

Once can quite imagine a differently constituted court (or the Court of Appeal) taking a harder view against the Prime Minister

The FDA, in turn, are right to aver the following:

“The High Court has decided:

 – That the prohibition on bullying, discrimination and harassment in the Ministerial Code is justiciable in the Courts.

– That the Prime Minister must correctly apply those concepts when determining complaints against ministers.

– That it is not an excuse for bullying under the Code that a minister does not intend or is not aware of the upset and distress caused by their actions.

“These findings vindicate the claim brought by the FDA and represent a clear rejection of the idea that there are different standards for ministers than for civil servants. The FDA is applying for its full costs of the claim to be paid by the government.

“In an unexpected development, the Court also found that the Prime Minister had not acquitted the Home Secretary of bullying in his decision in November 2020. The Court has held that the Prime Minister must have accepted the advice of Sir Alex Allan that the Home Secretary had engaged in bullying (or at least that he did not reach any concluded view on the matter).”

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Whichever government lawyer drafted the conclusions of the Prime Minister ultimately won this case for the government.

A more clumsily worded statement would have meant that even this court would have decided in favour of the FDA.

The government won – just about.

But now there is a High Court decision holding that determinations of the Ministerial Code are justiciable and that the Prime Minister must act properly in applying the Code to particular cases.

The case was also decided on the bases that the Home Secretary was not exonerated of the allegations and that the lack of intention did not mean it was not bullying.

The FDA must be tempted to have one more heave – and to take this to the Court of Appeal (though there would be a risk that it could lose the gains it has made).

The government is in the harder appeal position – for it can hardly appeal a case which it has ‘won’ and so it is stuck (for now, unless the FDA appeals) with the finding of justiciability and other points made by the court.

So this is a good example of a case which both sides can be seen to have lost – but one in which both sides can also be seen as having won.

And the more significant victory, for transparency and accountability, is that of the FDA.

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The lack of care about the Downing Street rule-breaking is more concerning than the rule-breaking itself

5th December 2021

Yesterday this blog covered a government supporting politician saying openly that the police should not trouble themselves with the now infamous Downing Street party of last Christmas.

Today the Lord Chancellor and Justice Secretary said – incorrectly – that the police do not normally investigate offences more than a year old.

There is something up here.

Yesterday this blog averred that it is not a good thing for politicians to routinely be reporting each other to the police, and also that the penalties for parties a year ago were disproportionate.

So, on those bases, this blog is not cheering and clapping the prospect of the police and the criminal process getting involved in a matter of political controversy.

But.

Even taking any reservations at their highest, there is also something worrying about how ministers, their advisers and their political supporters are so nonchalant about having broken the rules themselves.

And for the nonchalance of the Lord Chancellor and Justice Secretary to extend to incorrectly stating the position of the police incorrectly, then that makes the situation very worrying indeed.

His language was also especially evasive:

‘Unsubstantiated.’

The word a lawyer often uses when they cannot deny the alleged fact, but are instead pinning everything on a lack of proof.

It is invariably telling when the word is used instead of the more simple ‘untrue’.

Perhaps the government will brazen this out.

Perhaps it will be a mini-scandal soon forgotten in our exhausting, hectic news-filled times.

But it is worth pausing a moment to consider what is actually happening here.

There are credible, non-denied reports of a substantial breach of the criminal law in Downing Street.

That would be bad enough – though sometimes mistakes and misjudgments do happen.

But it is the cavalier attitude of the government and its supporters to these reports that is more concerning.

One rule for us – and no rules for them.

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A United Kingdom politician openly says that Downing Street should be above the law

4th December 2021

Here is a tweet to consider carefully, from a British Member of Parliament:

Let’s separate out the issues here.

First, there is something to be said against politicians reporting each other to the police and seeking prosecutions.

Getting the police involved should not be a a routine part of political activity and party campaigning.

It is, to an extent, distasteful as a partisan tactic.

But second, if there are laws then they do have to be enforced equally.

It may well be that the penalty against parties last Christmas was disproportionate and illiberal.

But it was a penalty that many outside Number Ten incurred.

And so either those penalties for others should all be revoked or the party-goers of Downing Street should be treated the same way.

One does get the sense that those in the government machine regard the laws and rules they impose on the rest of us to be only for the rest of us to comply with.

Third, the Member of Parliament is openly saying that Number Ten  should be exempt from police investigation and excused from the deployment of scarce police resources.

That is an extraordinary proposition, if you think about it.

But one suspects the Member of Parliament has not really thought about it – though that, in turn, makes it worrying as a casual aside.

On any view, such a public statement by a Member of Parliament tells us some unfortunate things about the state of our polity as 2021 comes to an end.

Brace brace.

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“We do not recognise…” – on the increasingly popular evasive phrase used by government press offices

3rd December 2021

One of the joys of dealing with press officers is their insincerity.

They know they are being insincere and evasive, and you know they are being insincere and evasive.

But they are in their role, and you are in yours.

One of the increasing common formulations adopted by press officers is “We do not recognise [x]”.

The phrase is not a denial: it is not being stated that [x] is false.

Nor is it, of course, an admission.

It is something in between.

In this way the phrase is like “We do not admit” used by civil litigators – though in litigation you should only use that phase if the fact is actually outside of your knowledge, even if you do not accept it to be true.

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“We do not recognise [x]”.

So an alleged thing may be true and unwelcome – but a spokesperson has managed to find something about the thing alleged which means they can avoid admitting it without denying it.

https://twitter.com/davidallengreen/status/1466708215983398913

As a lawyer, I would just then want to ask “well, what do you recognise to be the case?”

Though so deft are press officers at their insincerity and evasion that this clever follow-up will also no doubt be dodged.

And so we have this phrase – joining the likes of “we do not want to get into speculation” and “we do not give a running commentary” – as a means by which government press officers pretend to you (and perhaps to themselves) that there a good reason for not providing the information or confirmation requested.

The shame of it is that government press officers are (or should be) public servants.

The provision of information to the press and the public, in the public interest, is what they are actually being paid to do (and for which many will get civil service pensions and even gongs).

Yet they seem to to take pride in not serving the public interest but the political interests of current ministers.

This uncomfortable truth should be stark and glaring to those who work in government press offices.

But they do not see it.

Perhaps they do not recognise it.

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Abortion, law and policy – why there needs to be a constitutional amendment

2nd December 2021

The abortion issue is about one ultimate question: who gets to choose?

Is it those who are pregnant?

Or is it those who have control of a legislature or the courtrooms?

From a liberal perspective, the answer is simple.

As far as possible, those who are pregnant should have the choice to decide to terminate or not terminate their pregnancies.

This is because of the principle of autonomy.

But many do not want women to have that choice: they believe it is a choice for others to make, who do not know the woman or her circumstances.

Answering this ultimate question, however, is not enough.

For there is a further question: how should the right of someone to control their own pregnancy be enforced?

In the United States, the Supreme Court in Roe v Wade held that there was a ‘constitutional right’ to an abortion.

The problem with this is that the constitution of the United States does not expressly provide such a right.

It instead has to be read into the constitution by the courts.

And what a court can give, another court can take away.

Another problem is that the reasoning in Roe v Wade is not that compelling – even it arrives at the (morally) right conclusion.

So there is now a case before the Supreme Court where there is a very real chance that Roe v Wade will be severely limited, if not overturned.

This would be an illiberal and unfortunate outcome.

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For nearly fifty years, however, the effect of Roe v Wade has not been converted into an actual constitutional amendment, so as to put the ‘constitutional right’ beyond doubt.

And those opposed to abortion have, step by step, judicial appointment by judicial appointment, increasingly positioned themselves to overturn the decision.

It has been skilfully, deftly done – and in plain sight.

The judicial appointments under presidency of Donald Trump has made the shift irreversible for at least generation.

The only liberal way forward is not to litigate, but to legislate.

The ‘constitutional right’ of a woman to, as far as possible, decide the outcome of her own pregnancy is too important to rest on a flimsy Supreme Court decision, with poor reasoning and relying on a right not expressly set out in the constitution.

And if and when the constitution expressly sets out the right, then the decision as to who gets to decide whether to terminate a pregnancy will be, as afar as possible, back with who it should be.

The mother herself.

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How if a business issued the government’s “40 new hospitals” guidance it would be acting unlawfully

1st December 2021

The current government makes much of its manifesto promise that it will build ‘forty new hospitals’.

But at prime minister’s questions today, the opposition leader referred to the following guidance for public officials (or ‘playbook’ as it is formally described):

So a ‘new hospital’ includes an additional new clinical building where there is an existing hospital.

And even the refurbishment (or upgrade) of an existing hospital, as long as it looks different from the outside.

Both of these are jolly good things to be welcomed, but no sensible person would call them ‘new hospitals’.

Yet the government is requiring public officials to say this untruth.

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What if a business did this to consumers?

The Consumer Rights Act says things have to be as described.

Regulation 5 of the consumer regulations provides that an unfair commercial practice includes when a practice ‘in its overall presentation in any way deceives or is likely to deceive the average consumer in relation to…the quantity of the product’.

That reference to ‘overall presentation’ means that something hiding in the small print is not good enough as a legal escape.

If a business made such claims to a consumer then the law would regard this as ‘a misleading commercial practice’ and in breach of consumer protection rights.

Even without consumer law, claims that a major thing would be ‘new’ when it would either be merely an addition or a refurbishment would be likely – under general contract principles – to be either a misrepresentation that would mean the contract would be put aside or a material breach of a contract.

Indeed, some would go further and say such knowingly misleading statements in would even constitute fraud.

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The reason why these false claims are to be made so that it will appear that the governing party has met its own political manifesto commitment – and note how the manifesto itself distinguishes between upgrades and new hospitals:

‘Everyone in the UK should have the peace of mind and confidence that come from world-class health care – and so this new One Nation Conservative Government is giving the NHS its biggest ever cash boost, with 20 hospital upgrades and 40 new hospitals […]’

‘[…] have begun work on building 40 new hospitals across the country , as well as investing in hospital upgrades […]’

‘We will build and fund 40 new hospitals over the next 10 years. This is on top of the 20 hospital upgrades announced in the summer […]’.

Three times the promise is explicitly made in the manifesto.

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Of course, law is not politics, and political language is not to be held to legal(istic) standards.

But.

It is rare to have official guidance – even if called a ‘playbook’ – which sets out how public officials are to describe something falsely as a new hospital when it is not a new hospital.

Not only are ministers lying to us, but ministers are now requiring public officials to lie too.

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No UK political leaders of any party seem to be taking Northern Ireland seriously

30th November 2021

Yesterday the opposition Labour party had a reshuffle of its shadow cabinet.

This would not usually be anything of note for this blog, as it is the stuff of politics rather than of policy and law.

But there was one change that caught the eye.

The shadow Northern Irish secretary Louise Haigh was switched to the transport brief.

This was, to say the least, a shame.

Haigh had developed expertise and insights into the post-Brexit problems for Northern Ireland and the border dividing the island of Ireland.

She made a particular point of visiting Northern Ireland and Ireland regularly, so as to listen and understand the issues surrounding the Northern Irish Agreement.

She also had not only read the Good Friday Agreement (unlike some ministers), but she also understood it.

There was no better opposition politician to be in place while during reckless, erratic antics of Brexit minister David Frost and his constant threats to trigger Article 16 for no good reason.

And now, all that is lost, and the opposition front bench has to start again.

Haigh, of course, will no doubt do well on transport policy – especially as a northern member of parliament affected by this government’s reversals on rail infrastructure.

But something has been lost, and the necessary impression is that the Labour leader Keir Starmer, like the government front bench, does not take the Northern Irish issue that seriously.

As Dr Laura McAtackney avers:

These are all the shadow Northern Irish secretaries since the Brexit referendum:

And these are all the Northern Irish secretaries:

The turnover of Northern Irish secretaries and shadow Northern Irish secretaries has not only been at a time of Brexit and post-Brexit uncertainty but also when for about half the period since the referendum there has been no devolved assembly in Northern Ireland.

Could the main two political parties show any less interest in Northern Ireland?

If and when there is a border poll, and if and when there is a majority in the poll for a united Ireland, British political leaders will only have themselves to blame.

And indeed by any such a poll in just a few years, at the current rate we probably will have had another three or four Northern Irish secretaries and shadow Northern Irish secretaries.

The consequences of Brexit on Northern Ireland and the issue of the Irish border should be taken with the utmost seriousness by the leaders of the main British political parties – and they, of course, will protest that they do.

But rapid turnover of both Northern Irish secretaries and shadow Northern Irish secretaries shows otherwise.

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How a new formal lockdown will be a test of legal legitimacy

29th November 2021

As I type this post in a public place, only about three-quarters of those around me are also wearing masks.

In general, I am one of the many who do not like wearing masks but do so anyway for the sake of others.

But against that many there are the few who do not wear masks, of whom a small proportion are, of course, exempt.

That means there is a substantial number of people who do not wear masks and do not want to do so.

If and when a dangerous new variant of coronavirus comes along, the law will revert to making it mandatory to wear masks in many public places.

It will cease to be matter for personal choice.

It will instead become a matter (again) for the criminal law and state coercion.

But will it make any difference?

Or have sufficient numbers of people become resistant to masks so as to make any new criminal law unenforceable?

And, if so, where does that leave the rule of law and the legitimacy of public health regulations?

What will be the approach to enforcement by the police, if any?

The strange – perhaps ironic – thing about all this is that not so long ago those who protested against the state wore masks in defiance, inspired in part by V for Vendetta.

And now the defiant act against the state is to take masks off.

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Yes, the quality of the administration of Boris Johnson is poor, but it is also symptom of our constitutional weaknesses

28th November 2021

The primary political problem – and thereby the primary policy problem – with the current government is, of course, the Prime Minister.

As this blog averred two days ago, there is no policy predicament so bad that it cannot be made worse by his intervention.

That the Prime Minister is at the centre of the government’s political and policy problems is well explained today by Adam Bienkov.

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But.

From the constitutionalist perspective, the significance of Boris Johnson’s premiership is not really about him, but about what he can or seeks to get away with.

For Johnson is the politician supreme – an outstanding politician: in obtaining power, in holding on to power, and in evading any responsibility for how he exercises (and does not exercise) his power.

(For those to about to reply demurring from that last proposition, please note that it is not a compliment.)

Johnson is Prime Minister, and his opponents are not.

And Johnson’s premiership is a practical exercise in showing the weaknesses of the constitution – so much so that, like Margaret Thatcher and Tony Blair before him, he is more likely to be brought down by hubris than by any formal constitutional mechanism.

The weaknesses are, for examples, that a Brexit was done but without any proper scrutiny of the the withdrawal agreement; that similarly Covid law and policy has been and continues to be implemented without any proper scrutiny or accountability; that we have weekly shoddy policy making at the highest level leading in turn to weekly u-turns and chaos; that we have a minister of state conducting an erratic and shouty Brexit policy and playing with Northern Ireland’s future without any obvious cabinet interest or concern; and so on.

The manifold manifest failures of the current administration are not just the failures of one arch-politician, they are also systemic and structural.

Different parts of our constitutional arrangements are not doing their job.

And then when we look at how freely Johnson’s government is seeking to frustrate, circumvent or simply abolish any check and balance – from judicial review to the Electoral Commission – then you see further systemic and structural weaknesses.

‘The poor quality of the Johnson administration is not a bug, but a feature’, observes Bienkov correctly.

Yet Johnson’s premiership is, in turn, a symptom of our weak constitutional arrangements.

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At this point in this sort of discussion there will be a Pavlovian reaction that this means that we should have a written (that is codified) constitution.

But that would not necessarily help.

First, given the doctrine of parliamentary supremacy there is no way that a codified constitution can be put in place so that it is safe from easy amendment or repeal.

Second, a codified constitution can be illiberal as well as liberal, and any general code put in place in the current charged authoritarian political environment may well be less welcome than the current situation.

What is needed is not so much a new constitution, but for constitutionalism to be taken seriously.

Constitutionalism is the notion that there are political rules more important than any political expediency.

There are also a range of discrete statutory improvements that can and should be made – such as: dealing with the appointment to the House of Lords, reducing the scope of unscrutinised delegated legislation, placing the remainder of the royal prerogative on a statutory basis, and so on.

Perhaps even electoral reform – though that, like a codified constitution, is not necessarily a liberal panacea.

But, on any basis, the constitution does need to be Johnson-proofed, for the next politician supreme to get almost absolute power in the United Kingdom may not be as sloppy a buffoon as Johnson.

And there is little in the constitution to stop them.

Johnson’s premiership may be dreadful in and of itself, but it also a warning.

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