Author: David Allen Green

We need a stop-and-think approach to policy, not a stop-and-search policy

27th July 2021

Today there was a crime policy announcement.

Yet again, something or other will be ‘tougher’.

Like historians who say the middle class is always rising and the gentry always declining, crime policy is always getting ‘tougher’.

How can anybody involved in formulating and promoting this ‘policy’ keep a straight face?

Even the details of the policy are risible.

Pure ‘law and order’ theatre.

Convicts in high-vis jackets – for show.

A police officer with contact details – for show.

Stop-and-search policies without the need for suspicion – for ‘confidence’.

No thought, no substance – no thinking about rehabilitation, no thinking about a sensible and proportionate drugs policy.

And none of this new.

It is a staple for home secretaries of both main parties to want to introduce -in effect – the public humiliation of chain gangs.

As if that would have any beneficial effect for anyone.

There is already a police officer designated in charge of a case.

And indiscriminate stop-and-search creates tensions and conflicts in communities – and leads to the lack of confidence in the police.

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All shallow-showy or counter-productive stuff.

Nothing serious, even from a ‘small-c’ conservative perspective, let alone from a sensible liberal perspective.

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What we need is not a stop-and-search policy but a stop-and-think policy.

But – as this blog has previously averred – we have politicians more interested in ‘Law and Order!’ – complete with capitals and an exclamation mark – than actual law and order.

This is newspaper column material – but without even a reasonable suspicion of serious policy.

Appropriately, the best response was from cobblers:

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Politics v law and policy – a response to Dominic Cummings

26th July 2021

Late last night, Dominic Cummings posted this tweet, with a screengrab of a tweet from me from March 2019:

As a change from my usual daily blogpost, here is my thread in response:

https://twitter.com/davidallengreen/status/1419558769026031617

https://twitter.com/davidallengreen/status/1419560074402480128

https://twitter.com/davidallengreen/status/1419561908819087364

https://twitter.com/davidallengreen/status/1419562749739290625

https://twitter.com/davidallengreen/status/1419563640672460801

https://twitter.com/davidallengreen/status/1419564917884063744

https://twitter.com/davidallengreen/status/1419565781462011906

https://twitter.com/davidallengreen/status/1419566463900336131

Happy to deal with any comments below.

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Threats to doctors and nurses and lifeboat crews – and why laws and law enforcement are not enough

25th July 2021

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‘…we are indeed drifting into the arena of the unwell. Making an enemy of our own future.’

– Marwood, Withnail and I

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Every so often it seems that the culture wars are coming to an end, and then you get extraordinary things like this:

https://twitter.com/sbattrawden/status/1418984363304394762

A speaker tells a crowd in Trafalgar Square that doctors and nurses should be ‘hung’.

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People are abusing lifeboat crews.

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Doctors and nurses and lifeboat crews are perhaps the last individuals that would be insulted and threatened in a decent modern society.

Without any of the mirth of the Withnail and I film, we can echo the sentiment that our country is drifting (ever further) into area of the unwell.

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Those who defend such abuse may seek to say that it is only ‘freedom of speech’.

But no society has absolute free speech.

An immediate verbal threat of harm is not a protected speech act – just as forging a cheque or planning a robbery are not protected speech acts.

And dealing with threats to inflict hurt on other humans is what the law has, in part, always been about.

But to say a thing is against the law is not the same as saying the law would be effective in prohibiting such abuse.

Indeed, the laws as they stand would cover such utterances – and the law has not deterred the threats from being made.

And even if individuals were arrested and convicted, there is no reason to believe the nastiness of the culture wars would abate.

The ultimate issue here is not a public order problem with a neat legal solution.

The issue is cultural and political and social – and so only looking to the law would be an error.

There is a need for cultural and political and social leadership: for arguments to be won, and for behaviours to be discredited.

Laws and law enforcement will be part of that, of course, but they are not a complete answer, or close to it.

Once we are deep inside the arena of the unwell, there is no set of law suits or prosecutions with which we can bound free.

Those who threaten doctors and nurses and lifeboat crews should be prosecuted fully and fearlessly.

But such prosecutions would not make the problem go away.

Something deeper and more disturbing is afoot.

Brace, brace.

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Why ‘there’s been so little thinking about this’ – the accountability gap again

24th July 2021

Read this tweet about Whitehall.

 

This sentiment also could have expressed many times during the course of Brexit.

This general thoughtlessness is now a feature of political decision-making and (lack of) policy-making in the United Kingdom – at least in that part which is governed from Whitehall and subject to the (lack of) scrutiny of the parliament in Westminster.

How has this come to pass?

One safe assumption is that human nature – even in the context of politics – has not changed.

Politicians – like people generally – will tend to be thoughtless unless there is a reason not to be.

Politicians will tend to seek to get away with what they can.

If this assumption is valid, then the question is what enables politicians to get away with such thoughtlessness.

Perhaps politicians have always been like this – one can think of the Poll Tax or the invasion of Iraq – as illustrations of thoughtlessness in policy-making.

Perhaps it is that Brext and Covid have both been so destabilising, all that has happened is that the general political gormlesssness has been exposed by being thrown into relief.

Perhaps.

But it also can be contended that – as this blog has averred many times – there is an accountability gap within the United Kingdom polity.

This means government departments know there is little or nothing to check and balance misdirections, misadventures and maladministration.

This gap – even if it has always been there – appears to be widening.

Ministers are now open in their disdain for parliament and for serious media scrutiny: they do not even now pretend.

The cabinet office increasingly seems to brazenly revel in being obstructive in respect of freedom of information and parliamentary select committees.

The public ombudsman system – expressly responsible for investigating maladministration – is so impotent that it may as well not exist.

And even those bodies which do show spirit and dedication in holding the government to account – some select committees and the national audit office – are ignored by ministers and much of media.

In between general elections there is no real accountability – and even the policy mandates conferred in general elections are ignored.

In all these circumstances, the wonder is not that we have so much thoughtlessness in the making of decisions and policy – but that we ever get any at all.

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The ejection of a Member of Parliament for pointing out the lies of the Prime Minister is a practical example of the function-failure of the UK constitution

The suspension of the member of parliament Dawn Butler from the house of commons is a significant example of the function-failure of the constitution of the United Kingdom.

Butler’s suspension was because she called the prime minister a liar on the floor of the house of commons.

But as the current prime minister casually and freely lies in the house of commons (and elsewhere) this suspension creates a constitutional mismatch.

In essence: there is no real sanction for a prime minister (or other member of parliament) for lying to the house of commons, while there is a real sanction for those members of parliament who point it out.

It is an extraordinary – and counter-intuitive – constitutional predicament.

There is something very wrong here.

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How did we get into this mess?

First, it must be understood and accepted that there is a problem with prime ministerial dishonesty.

Perhaps there always has been – and our current prime minister is no worse than his predecessors – but even if this shruggy view is accepted, there is no doubt the current prime minister lies and lies.

That Hamlet’s father and Jacob Marley were both dead to begin with, and that Boris Johnson  lies, are fundaments in English culture.

One source for the prime minister’s ongoing dishonesty is this particularised, non-sensational list put forward by leaders of six parties in the house of commons to the speaker:

There are similar examples in almost every session of prime minister’s questions.

A more sensational compendium is in this widely viewed video from Peter Stefanovic:

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The reason to emphasise the prime minister’s actual dishonesty as a real concern is that the supposedly pragmatic constitution of the United Kingdom is supposedly good at practical (if inelegant) solutions to actual problems.

This, we are told by constitutional fogeys, is why our constitution is cuts above the formal codified constitutions of foreigners with their ‘rigid’ rules.

Well.

Here is an actual constitutional problem in need of a practical ‘flexible’ solution – and we ain’t got one.

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The second aspect of the problem is that the rules of parliament (which are distinct from the law of the land) in effect prohibit members of parliament from accusing other members of parliament of dishonesty – regardless of whether there is any dishonesty.

It would even be against parliamentary rules to say of a member of parliament that they are a liar even if the lies have been admitted.

The formal guide to the rules of parliament is known as Erskine May, and the relevant passage about accusations of dishonesty is:

‘Expressions when used in respect of other Members which are regarded with particular seriousness, generally leading to prompt intervention from the Chair and often a requirement on the Member to withdraw the words, include the imputation of false or unavowed motives; the misrepresentation of the language of another and the accusation of misrepresentation; and charges of uttering a deliberate falsehood.’

This is not an absolute bar to making accusations of dishonesty against other members of parliament – there is a formal but ineffective way:

‘If a Member wishes to pursue accusations of a kind not permitted because of these principles, the proper course is to table a distinct motion about the conduct of the other Member.’

The issue with such a motion is that – even if passed: so what?

Erskine May also does have a section on misleading the house, which provides:

‘The Commons may treat the making of a deliberately misleading statement as a contempt.’

To which the issue again is: so what?

One may as well cast a line into the Thames, catch an improbable and unpolluted fish, and slap that unfortunate fish on the dispatch box.

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The wider predicament is that the constitution of the United Kingdom is premised on what the historian Peter Hennessy has long characterised as the ‘good chap’ theory of government.

Here is Hennessy’s phrase being used back in the innocent days of 2005 where the concern was merely memoirs by former officials.

More recently, in 2019, here is Hennessy and another author explaining in detail the failures of the ‘good chap’ theory – a report which should be read by anyone with an interest in constitutional affairs.

In essence: the constitutional arrangements of the United Kingdom work as an honour-based system based on those with power exercising self-restraint.

All it takes is a knave to disrupt and undermine the system – and there is nothing within the system to check and balance such knavery.

This complacency is why there are more ready sanctions against those who accuse ministers of dishonesty than there is against the dishonesty of ministers – for the latter, according to constitutional fiction would not (or should not) happen.

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There is merit in having a general rule against lightly making serious accusations in the houses of parliament.

But the counterpoint to such a rule is that there should be a practical means of addressing the problem of ministerial dishonesty.

Otherwise we have the current situation: wonky, lop-sided and discrediting.

That Butler should face a serious a sanction while Johnson does not defies common sense and it should should defy our constitutional arrangements too.

Some may say all this shows that there is a need for a ‘written’ (or codified) constitution.

But the solution to this problem does even not need such a drastic (and unlikely) change – and the problem of executive dishonesty happens in states with written constitutions too.

The solution would be for constitutionalism to (again) be taken seriously by politicians generally.

Constitutionalism (a theme of this blog) is the notion that there are political rules and principle that are above partisanship.

The reason why the prime minister can get away with such dishonesty is that a majority of the house of commons let him.

If a majority of the house averred that such conduct was unacceptable, regardless of party or faction, then the speaker would have the powers to address the issue.

As it stands, the speaker is given the powers to deal with accusations of dishonesty, but not the dishonesty itself.

It would not need a written constitution to solve this problem.

It would instead take resolution – and, literally, resolutions.

It would need members of parliament to take constitutionalism seriously.

And until members of parliament take constitutionalism seriously again, we are going to have the now-familiar sight of our dishonest prime minister sitting safely at the dispatch box, dismissively shaking his head – while those who point out his lies are ejected.

And that is because the constitution is dismissively shaking its head too.

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Explaining the attack on judicial activism that never happened – three theories

22nd July 2021

The great theatre critic Kenneth Tynan said somewhere that any good theatre critic can describe what the the theatre of their day was doing – the challenge was to explain what the theatre of their day was not doing but could be doing, and why.

This is the same challenge for all commentators, including those of us who seek to explain what is happening – and not happening – with law and policy.

And, as this blog described yesterday, there one thing that is not happening is the government not making a full frontal attack on judicial review in the new courts  bill published yesterday.

(On this, see also Helen Mountfield QC at Prospect today.)

It is always weird when nothing happens when something is expected to happen.

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“Without venturing for Scrooge quite as hardily as this, I don’t mind calling on you to believe that he was ready for a good broad field of strange appearances, and that nothing between a baby and rhinoceros would have astonished him very much.

‘Now, being prepared for almost anything, he was not by any means prepared for nothing; and, consequently, when the Bell struck One, and no shape appeared, he was taken with a violent fit of trembling.’

– from A Christmas Carol by Charles Dickens

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Law and policy commentators were yesterday expectant of a rhinoceros, if not a baby.

So what was finally published – a mild piece of legislation – has given us a fit of trembling.

What have we missed?

And what can explain what happened?

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So far there are three broad theories.

The first is that this is a political false flag.

That the government has an illiberal plan – but for some reason is misdirecting us with this bill.

And indeed, as the eminent admiralty law jurist Gial Ackbar once averred, some things can be a trap.

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Could the ministry of justice really be planning to introduce a raft of amendments late in the passage of the bill, so as to force illiberal measures through?

One would hope not – and one expects ministry of justice officials and lawyers to have more dignity than their home office counterparts.

And – in general terms – bills often start off more contentious than they end, so it would be unusual for such a game of constitutional bait and switch.

That said, one should not let one’s laser field down: this government will seek to be illiberal if it can get away with it.

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If it is not a trap, there are two other possible broad explanations.

One is that put forward by this blog yesterday – which I will call the DAG theory, if only to distinguish me from Ackbar.

This theory is government-facing – and goes to the notion that there is (or was) actually a problem of judicial activism being a myth.

I first put this argument forward in my Prospect column last year, where I set out why there was a discrepancy between the (supposed) fears of the government (and its political and media supporters) and the reality of mundane administrative law decisions.

It would thereby not be a surprise that when the government came to actually legislate – rather than speechify – there was no real problem to solve with primary legislation.

The government had walked up a stair and passed a problem that was not there, and the problem was not there either yesterday, and indeed it had gone away.

If so, this is a similar to previous situations, where the government has sought to ‘reform’ the human rights act or to deal with ‘compensation culture’.

It is always difficult to make laws against turnip-ghosts.

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But there is a third theory, which you may find more plausible than either Ackbar’s or my own.

And that was put forward on Twitter by Alexander Horne.

Instead of my government-facing explanation, Horne argues that it is the policy of the courts that has changed.

And that because there is now no problem of judicial activism, it follows there is no need for a solution.

Horne makes good points.

There is certainly a shift in the supreme court under the new president Lord Reed – and Reed is, as this blog set out in a previous post, a judge who can write that judges should give the assessments of the home secretary more respect with a straight face.

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Where Horne and I agree is that there is currently no problem of judicial activism that needs solving – the difference between us is that I aver it was a turnip-ghost all along.

Whichever theory is correct – Ackbar, DAG or Horne – there will be some commentators and campaigners who will contend that even the two proposed reforms are too much, and that they must be opposed loudly and brashly, and deploying the language of constitutional conflict.

But a good advocate knows that one should choose one’s battles.

The government’s proposals should still have the benefit of anxious scrutiny – just in case Ackbar is correct.

But one should be wary that the language of fundamental opposition to the government be devalued, for if is wasted here then it will have less purchase when it is needed.

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A final word to the Judicial Power Project – a group with the strange view that the primary problem in the United Kingdom constitutional is judicial power and not the lack of checks and balances on either the executive or the legislature.

It would appear that the Judicial Power Project are underwhelmed with the reforms they have so long campaigned for.

You would need a heart of stone not to laugh.

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What has happened to the government’s fundamental attack on judicial review?

21st July 2021

I was going to use today’s post to criticise the United Kingdom government’s assault on judicial review in the Judicial Review and Courts Bill published today.

But I cannot, because they have not.

At least not in the bill as originally published.

The bill only seems to have two provisions in respect of judicial review – neither of which are exceptional nor objectionable.

One deals with a particular issue in respect of immigration judicial reviews, the other in making an additional remedy available to judges.

The latter has the strange quality in a government proposal of actually being a good idea.

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For a sense check I looked at the comments of other legal commentators (I always try to form my own view on legal instruments and judgments before seeing what else others have said).

But they too saw the proposals as mild and uncontroversial.

Lord Anderson QC, an independent peer:

Lord Pannick QC, via my near namesake the president of the law society:

And via Joshua Rozenburg:

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We can be quite sure that the (laughably) named Judicial Power Project – a group with the strange view that the primary problem in the constitution of the United Kingdom is unchecked judicial rather than unchecked executive or legislative power – will be disappointed.

And there is a serious question to be asked about whether the government will seek to introduce amendments during the passage of the bill – though the usual trajectory is for bills to start off illiberal and to become less so during their legislative passage.

There is also the detail about fettering judges’ discretion in respect of the new quashing orders.

But all this said: this is a significant (and welcome) law and policy anti-climax.

This government went from boasting and blustering about fundamental judicial review reform – with a wide-ranging consultation – to, well, this.

Front covers of right-wing magazines carried caricatures of stern out-of-touch judges, while the tabloids called them ‘enemies of the people’.

But as this blog previously described, the government did not get the consultation response it was looking for.

Perhaps there was never really any problem to begin with – other than in the extreme political imaginations of the government’s political and media supporters.

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The Home Office wants to reform Official Secrets law by pretending journalism does not exist

Over at the Guardian there is an important article – which is also worth reading just for its byline

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A rare sighting in the wild of Duncans Campbell

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The article in turn refers to this government consultation document.

The document is interesting (and worrying) in many ways – but one significant feature is how it shows the state has realised that the old state secrecy model in unsustainable in the new technological and media context.

The concern primarily used to be about what could be done by means of espionage.

And this generally made sense, as the means of publication and broadcast were in the hands of the few.

Now the bigger threat is mass-publication to the world.

This is a particularly striking passage (which I have broken into paragraphs):

“…we do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989.

“Although there are differences in the mechanics of and motivations behind espionage and unauthorised disclosure offences, there are cases where an unauthorised disclosure may be as or more serious, in terms of intent and/or damage.

“For example, documents made available online can now be accessed and utilised by a wide range of hostile actors simultaneously, whereas espionage will often only be to the benefit of a single state or actor.”

Unauthorised disclosure is, of course, at the heart of investigative journalism – indeed some define news as being what other people do not want to hear.

And there is already an offence in respect of unauthorised disclosure by third parties.

But that offence was enacted in the happy halcyon days of 1989 – the year incidentally that the WWW was conceived.

A time where the technological extent of unauthorised disclosure was Spycatcher being published as hard copy books in Australia.

So to a certain extent, the consultation paper is not new: the state still wants to control and prohibit what unauthorised third parties can disclose to the world.

What has changed, however, is the scale of potential disclosures – and that also has changed the priority of dealing with such onward disclosure.

But, as the Duncans Campbell aver, this reorientation of the law of official secrets needs to accord with the public interest in accountability and transparency.

In the consultation paper, ‘journalism’ is not mentioned – and ‘journalist’ is mentioned in passing twice.

The role of the media – and the rights and protections of those who publish information to the world – should instead be integral in any sensible regime of official secrets.

Else we will have the spectacle of the 2020s equivalent of the misconceived and illiberal (and preposterous and futile) Spycatcher injunctions of the 1980s.

Not having proper regard to the public interest in transparency and accountability in the making of any public policy – and especially in respect of national security and official secrets – means you have to deal with these foreseeable concerns later.

Journalism does not go away, just because you do not mention it and pretend it is not there.

**

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From 1984 to Miss Minutes: the surveillance state is watching you, and there is little or nothing at law you can do about it

19th July 2021

One of the many pities about Nineteen Eighty-Four being too familiar a book is that one can overlook the care with the author of the story constructs the world of an intrusive surveillance state.

The author, a former police officer, does this briskly and subtly.

First he takes the central character through a hallway where a poster has face that is – metaphorically – ‘watching you’.

Then you are told:

‘In the far distance a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the police patrol, snooping into people’s windows.’

So you are being watched – not metaphorically – from the outside.

And when the character enters his flat:

‘The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it, moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard.’

You are also thereby being watched – and again not metaphorically – from the inside.

We are still fewer than 700 words into the novel, but the author has already depicted the claustrophobic predicament of living in a surveillance state.

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Today’s Guardian has set out in a number of articles the extent to which such a surveillance regime is now translated from a literary text into social and policy reality.

None of this is surprising.

And none of this is new: the author of Nineteen Eighty-Four easily imagined such things in the 1940s.

What has not changed is the want of those with political control to have such power.

All that has changed is that those with political power now have access to the technology that enables them to have that power.

But perhaps unlike the state in Nineteen Eighty-Four, those with power do not proclaim from posters – in hallways or otherwise – that we are being watched.

And instead of it being on a big screen on your wall, you willingly and casually carry the means of this intrusion around with you.

Indeed, you are probably looking at that very device this very moment.

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From a constitutional and legal perspective, the obvious issues are the extent to which – if at all – there is any accountability for the use of these powers and the extent to which – if at all – there is any regard for human rights and civil liberties.

And as this blog has previously averred, there is very little accountability and transparency for those with political power even for things which are in the open and without the daggerful cloak of ‘national security’.

Indeed, even cabinet ministers have realised recently that they are under surveillance in their own offices with no control over that surveillance and the uses to which it will be put.

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The one welcome, fairly recent development is that this surveillance state is now (nominally) on a lawful basis.

Each power and exercise of power by the state has to be within the law.

But.

Two things.

First: such is the lack of real accountability and transparency, it makes no difference to the surveillance state whether it is within the law or not.

Even when there is something that is known-about and contestable, the deference of our judges when ‘national security’ is asserted is considerable.

Our judges may not use gavels – that is a myth – but they may as well use rubber-stamps.

And second: public law, well, only covers directly the actions and inactions of public bodies.

But as today’s Guardian revelations show, the software and technology comes from the private sector and there is little or nothing that can effectively regulate what private entities can do with the same means of surveillance.

Public law bites – to the extent that there are teeth attached to a jaw capable of biting – only once the technology and data are in the hands of public bodies.

It is a depressing situation – and not one which can be easily addressed, if at all.

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This blog has been criticised that it does not provide solutions to the problems that it describes and discusses.

But sometimes predicaments do not have ‘solutions’.

It is a tidy human habit of mind to conceptualise matters of concern as ‘problems’ – for that often implies there must be solutions.

Once you say a thing is a problem you usually are half-way to suggesting that there must be some solution.

But the predicament of those with power having greater and greater control by means of technology may not have any natural limit.

Each update and upgrade just making it easer for those with public and private power to intrude and invade.

Imagine reboots, stamping out your data – forever.

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The excuse of ‘the king’s evil counsellors’ – Part II

18th July 2021

Over three months ago, his blog had a brief post about ‘the king’s evil counsellors’.

Here it is:

And: he still is – or at least he seems to be.

But: is he?

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Here is a tweet today from a news journalist about the latest of many rudderless u-turns:

Yet again: the kings evil counsellors.

The plausible deniability of the ‘kings evil counsellors’ is, of course, a thing as old as kingship.

But with the current prime minister, however, perhaps there is a certain plausibility to this plausible deniability.

It is plain that there is little or no central direction – the only driving force from the prime minister is that he wants to get away with things and he is happy for his ministers to get away with things too.

In a strange and curious way, we now have something like the (supposed) classic model of cabinet government in the United Kingdom: the ‘government of departments’.

Each minster seems to be doing exactly what they want.

And, similarly, each Number 10 adviser seems also to be doing what they want.

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The premise of the old notion of the ‘kings evil counsellors’ is that the ruler would be horrified to know what was being done in their name.

The reality, of course, would be that the king knew full well – the counsellors were just being set up to take the blame.

The current prime minister seems to go one step further: he just does not seem to care.

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