Author: David Allen Green

Worldliness is the basis of any decent constitution

Summer solstice, 2021

One of the themes of my law and policy commentary on this blog and elsewhere is that a culture of ‘constitutionalism’ is more important than constitutions – and that demands for a ‘written constitution’ should be not be seen as more urgent than demands for a constitution that works.

Constitution-mongers – to use the pejorative phrase of Edmund Burke – may serve up for sale eloquent and elegant texts, detailing which institutions should do what in an ideal polity.

But the basis of any worthwhile constitution is not the exposition of what each institution of the state can and should do, but what will check and balance each element of the state.

A worthwhile constitution is one that goes along with the grain of political behaviour, and not cut across it on the basis of what ‘should’ happen.

Those with executive power will naturally resent those who can hold them to account.

Those with legislative power will naturally be at odds with those who interpret and adjudicate upon their legislation.

Those with judicial power will often want to substitute their views for those who are charged with legislative power or executive power.

And so on.

The value – the merit – of any constitution is how well it deals with conflict between the elements of the state.

Like a contract, the purpose of a constitution is not to provide for what happens when the relevant parties are in harmony – for then there is no recourse to any legal instrument or set of arrangements.

A constitution – like a contract – is there to regulate the consequences of things going (foreseeably) badly.

The quality of understanding which things can go (foreseeably) badly is worldliness.

And constitutional worldliness, in turn, is the characteristic of those who realise that the content of constitutional texts is not enough – it is more about how the rules and values set out in those texts are enforced.

Those constitutions which have as their premise that there will be conflicts, and then provide how those conflicts will be practically regulated and resolved, are more likely to endure than those with heady, eye-catching lists of rights and freedoms and neat lists of separated powers.

Constitutionalism is the belief that there are principles and rules about how a political system is arranged that have a greater priority than the partisan interests of any politician or party.

Constitutionalism is a way of thinking – and so a polity with few formal checks and balances can have a stronger constitution than one with lots of glittery provisions that are ignored and derided.

Those with the power of the state will tend to want to abuse the power of the state.

Constitutionalism is about how this tendency is, in the real world, checked and balanced.

And any constitution without such worldliness is hardly a constitution at all.

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There cannot be ‘Public Sector Reform’ without genuine transparency and a general duty of candour

20th June 2021

(This is the third in a trilogy of short posts about the accountability of the United Kingdom state – see Garbage in, Garbage Out and The Accountability Gap.)

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Every so often there will be some politician – usually Michael Gove but sometimes someone else – who will urge that there be ‘public sector reform’.

This reform should be ‘radical’ or ‘fundamental’.

Heads will nod, and hands may even clap.

Worthy pdfs will be clicked on earnestly, only for the tabs to be then left unread.

And then nothing really happens until the next time some politician – usually Michael Gove but perhaps someone else – will urge that there be ‘public sector reform’.

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What is often missing in many of these heady, fine-sounding proposals is the one thing that would genuinely be radical or fundamental.

This would be to force public sector bodies to disclose information against their will.

For as long as public bodies – politicians and officials – can pick and choose what information can be disclosed publicly, there can never be any meaningful reform of the public sector.

There needs to be a tension – a check and a balance – in respect of any public body’s estimation of itself and its performance.

Unfortunately – as typified by the cabinet office under Michael Gove – there is a general public sector disdain for transparency and freedom of information.

There always seems to be some reason to keep public sector information secret – from ‘national security’ to ‘commercial confidentiality’.

Indeed, the most dismal and insincere official documents in existence are freedom of information non-disclosure decision letters.

Everyone involved knows that the content of such letters is faithless guff – but nobody with any power seems to care.

When there is no duty of disclosure and no duty of candour there can be no holding of the public sector to account.

And if there is no way of holding the public sector to account then any ‘public sector reform’ will not succeed against the private interests of the officials and politicians involved – nor against the interests of external suppliers.

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So, to mimic David Hume, there is something to ask of any public sector reform, whether it is proposed by Michael Gove or somebody else:

Will the proposed public sector reform result in the public sector disclosing information that it otherwise would be unwilling to disclose?

No?

Will the proposed public sector reform mean that officials and politicians – and relevant third parties – being candid when they otherwise would not be?

No?

Then commit the proposed public sector reform to the flames, for it will contain nothing but sophistry and illusion.

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The Accountability Gap and the State of the United Kingdom

19th June 2021

Here is a challenge.

Think of a normal, day-to-day process of the United Kingdom state.

And then try to think of examples when that process has succeeded in holding the state accountable – that is against the government’s wishes.

It is not easy.

Freedom of information is impotent.

The public services ombudsman is inefficient (at best).

Debates on the floor of the house of commons – and ‘opposition days’ – provide little more than Westminster theatre.

The prime minister casually lies at the weekly set-piece of political accountability, without any sanction or shame.

Written parliamentary questions take an age to be answered – and the answers given are often useless.

Government press offices are expensive exercises in not providing any help other than to the careers of those who staff them.

The only exception is that, from time to time, a parliamentary select committee can publish a report that hits through – though this often is down to the capabilities and qualities of whichever clerks work for the committee, than to the MPs and peers which formally comprise the committee’s membership.

And so because the normal processes of the state are generally so weak that we end up with ad hoc processes such as inquires and court cases to force the state into accounting for its actions (and inactions) against its will.

Think here of the post office scandal litigation, and think of the Hillsborough and Daniel Morgan panels.

And there are other examples.

(And imagine how many examples there are where there have not been such determined campaigners dedicated in getting at the truth.)

Ad hoc exercises in practical accountability such as court cases and panel inquiries are, however, often undermined (as this blog averred yesterday) by a legal inability to force disclosure against the state’s will or interests.

And each success in forcing accountability by means of a court case or an inquiry usually has equal and opposite significance as an example of failure of the institutions of the state to have held other parts of the state properly accountable in the first place.

In particular: the failure of parliament to be an effective check on the executive.

There is a severe accountability gap in the state of the United Kingdom.

And it is from this gap so many other political problems emerge.

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Garbage In, Garbage out – how ‘disclosure’ failures undermine inquiries

18th June 2021

Techies have a phrase for it: ‘garbage in, garbage out’.

Or GIGO, for short.

What this means, of course, is that the quality of the outputs of any given process are determined by the quality of the inputs.

This basic, rather obvious point is often missed by those who demand ‘inquiries’ into all sorts of apparent state failures.

The emphasis is often placed on it being ‘judge-led’ or whatnot – that is, the form that the inquiry should take.

But this is to prioritise form over substance.

And this is because any inquiry – and indeed any formal decision-making process such as a trial – is only as good as the information to which it has access.

If you control the flow of information to an inquiry (or trial) you then have significant control over the outcome.

In particular, if you control what information the inquiry does not get – even though that information is relevant and available – then you, in effect, neuter the inquiry.

This is why any duty of disclosure is a crucial element in respect of any inquiry.

If the police (in the examples of the Hillsborough inquiry and the Daniel Morgan independent panel) or the post office (in respect of the horizon scandal) deny documents exist, or refuse to give access to information, or simply refuse to disclose incriminating or embarrassing evidence, then the inquiry will be undermined.

And this is regardless of the qualities of the judges or other heads of the inquiry, or the scope and eloquence of the terms of reference, or the public interest in the matter.

GIGO.

And any entity that faces criticism or embarrassment – or even criminal liability – will not willingly disclose evidence which can be used against it.

Nor will the individuals that comprise those entities.

They will hire specialist lawyers, skilled and experienced in ‘managing’ disclosure – who will ensure the interests of their clients are protected without any law being actually broken.

All of this should not be any surprise.

And so why the obligations of disclosure are perhaps the most important thing to get right if you want any inquiry to be of any use.

Not who is the judge or on the panel, or what the terms of reference are, and so on.

Let the inquiry get the evidence that matters.

Otherwise: GIGO.

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Round-up of the best initial coverage of the Daniel Morgan independent panel report

17th June 2021

The report of the Daniel Morgan independent panel is an impressive and solid piece of work – but it will take time to properly digest.

I am working on a couple of substantial posts on the report.

Here are other things about the report you should look at.

From the family:

This outstanding Channel 4 News item – a brilliant piece of television journalism:

A good question, well asked at the New Statesman:

And a wise and insightful post by a veteran home affairs journalist:

My podcast and FT article on the Daniel Morgan report

16th June 2021

I have done a podcast on the Daniel Morgan report – click here for links to the podcast on various platforms.

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I also have done this piece over at the Financial Times.

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If you have any (non-irksome) questions on either the podcast or the FT piece – or on the Daniel Morgan report generally – ask below as a comment and I will answer if I can.

 

 

 

How the Daniel Morgan independent panel report substantiates its allegation of ‘institutional corruption’ in the Metropolitan Police

15th June 2021

The report of the independent panel into the death of Daniel Morgan – and how every investigation and prosecution collapsed – was published today.

And if you are to substantiate the serious allegation of ‘institutional corruption’ against the metropolitan police both historically and in the present tense then this is how to do it.

The report is solid, detailed, thorough, methodical, sourced, and it cannot be dismissed.

(Even if the report is ignored.)

It makes out a compelling case of corruption throughout the metropolitan police – and not just some dodgy officers at one police station.

But corruption needs a motive – and this is where the report is at its most compelling – it shows how the police were primarily motivated by reputational imperatives at each stage.

And the report demonstrates that this corruption continued with obstructing the work of the panel itself.

Given the weaknesses of a non-statutory inquiry, this is a far better report than one could have reasonably hoped for – and let us hope it brings at last some sense of justice for the Morgan family.

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The report of the independent panel on Daniel Morgan should be published tomorrow – and three things to bear in mind

14th June 2021

Tomorrow the publication is expected of the report of the independent panel on Daniel Morgan.

We do not know at the moment whether the report will be momentous – or an anti-climax.

Many waited anxiously for, say, the Chilcot report or the Meuller report – only for the news to move on to other things within days, if not hours.

But regardless of the response of news organisations to the report, the report will be significant in its nature – even if it is not momentous in its effects.

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The report is about three things.

The first is the 1987 death of a private detective in circumstances so brutal that the passage of thirty-four years cannot diminish the horror.

I do not know whether Daniel Morgan was about to uncover and expose police corruption or not when he was murdered – but the motivation for any murder does not really matter.

Even without what followed in the aftermath of his death, it was a singular murder that has never been properly investigated or explained.

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The second is the messy and corrupt relationships between the private detective industry, the Metropolitan police and the media from the 1980s onwards – as they merrily sold and bought personal information.

Even if Daniel Morgan’s death was not about the potential exposure of corruption, the circumstances of his death was – for those connected with him – something which hanged over everyone involved for over thirty years.

And for some of those connected with him, the murder and its fallout – all those investigations and prosecutions – was no doubt an inconvenience and a perceived ‘problem’ that had to be somehow ‘managed’ while they were all otherwise engaged in the lucrative trade in the supply and purchase of private information.

This is regardless of whether anyone suspected for the murder was actually involved – the investigations and prosecutions never seemed to go away and were, no doubt, a nuisance.

Insofar as this report covers this messy and corrupt set of relationships, it will be the nearest we will probably get to the now abandoned ‘Leveson 2’.

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Third, there is something rather extraordinary that requires an explanation.

Following Daniel Morgan’s murder there were no less than five investigations and prosecutions – all of which collapsed.

Like those castles built by the king in Monty Python and the Quest for the Holy Grail, each successive investigation and prosecution seemingly fell into a swamp – but here a swamp of compromised processes and irregularities and acts of self-protection.

It may well be that there were mundane reasons why each of these five investigations and prosecutions failed – and, of course, investigations and prosecutions fail all the time for all sorts of unexceptional reasons.

But how all these five investigations and prosecutions each toppled over is extraordinary – and extraordinary things require explanations, even if those explanations are themselves not extraordinary.

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I have followed the Daniel Morgan story since 2012 – and I would have blogged more about the case and it possible implications had it not been for the launch of the independent panel inquiry.

The case is potentially a way into understanding what happened at the time between the police and the media and the private detective industry – and how all of this in turn affected public policy and the conduct of the media.

But the human side of this is also crucial.

Alastair Morgan – one of the most decent and determined people you will ever meet – has spent thirty-four years campaigning for justice and to uncover what happened with the death of his brother Daniel and its aftermath.

We should hope the report brings some sense of justice to Alastair Morgan and the rest of the Morgan family.

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Pointing out the United Kingdom government negotiated and signed the Northern Irish protocol is not enough – those opposed to the government’s post-Brexit approach also need a positive policy

13th June 2021

‘I told you so.’

These is perhaps the most dangerous four-word phrase in the English political lexicon.

And the danger is that the one who did tell others so then just shrugs, and does nothing more.

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A political idiot does [x], even though you (and others) averred that [x] would be irresponsible and dangerous.

Of course: it is natural and right to point out the idiot did [x] even though the irresponsible and dangerous idiocy was both foreseen and foreseeable.

And this is what this blog did yesterday.

But.

It is not sufficient.

The government can (and will) just shrug off the criticism.

And a sufficient number of voters will nod-along with the government, regardless of these errors being pointed out.

Any sensible person knows that the government made serious mistakes forcing though Brexit at speed and without a plan, and in signing up to a withdrawal agreement without understanding or caring what it said.

It is bleedingly obvious.

But there is only so much purchase in pointing this out, and that purchase is unlikely to extend to changing any voters’ minds.

Something more is needed.

Something positive.

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The biggest problem in the politics of the United Kingdom at the moment is that neither the government nor the official opposition have any substantial positive vision of the United Kingdom after Brexit.

The government, having obtained Brexit, is the proverbial dog that caught the car.

And the opposition are refusing to engage with Brexit at all, fearful of the repercussions of mentioning it – and a cowered opposition is, of course, a useless opposition.

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It is fun – and easy – to point out the government entered the Northern Irish protocol of its own free will.

The pressure to sign it at speed was self-inflicted.

We know this, and they (if ministers are honest with themselves) know this.

Yet the protocol was only, in effect, a backstop and an insurance policy (though less of a backstop and an insurance policy than the proposed formal arrangements it replaced in the course of the negotiations).

And what is the positive vision of the post-Brexit relationship between the United Kingdom and the European Union?

Does anyone – anyone at all – have a positive vision of what happens next?

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The government’s Brexit problems were foreseeable and foreseen – but ministers did not care and went ahead anyway

12th June 2021

Some things remain true even when they are said again, and again, and again.

One of these truths is that a Brexit done at speed was never going to go well – and that the government of the United Kingdom refusing extensions (either to the Article 50 period or the transition arrangements) was gross irresponsible idiocy.

Ministers placed themselves under self-inflicted pressure and suffered self-imposed weaknesses.

All to ‘get Brexit done’.

Another of these truths is that if the United Kingdom left the single market then one of three things would have to happen.

Either the United Kingdom would have to stay aligned with the single market anyway, or there would be a border on the Irish mainland, or there would be a border in the Irish Sea.

Any other possibility would be fanciful, if not fantasy.

A further truth is that there was little point going through with Brexit until and unless the United Kingdom had a settled and realistic view of what would then follow, in terms of its relationship both with the European Union and with the rest of the world, and in terms of what would happen in respect of Northern Ireland.

But on this basis the United Kingdom still does not know what we want, though we want something.

The only possible merit, from a Brexit point of view, of this rushed, muddled and directionless Breixt is that, if the process had lasted any longer, it may well have been reversed.

There may have been other Brexits possible in theory, but this was perhaps the only one possible given the politics before the 2019 general election.

This is not a merit from any sensible and objective view, but perhaps it explains why this botched Brexit did happen, instead of any other.

All to ‘get Brexit done’.

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