Author: David Allen Green

Podcast – discussion with Alex Andreou on the upcoming Daniel Morgan report and its potential significance

31st May 2021

In this podcast released today (but recorded last Friday) I discuss with Alex Andreou the significance of the upcoming Daniel Morgan report – and also the recent attempts by the home office into bullying the independent panel.

Andreou is a superb podcast host, combining a formidable intellect with a luxurious, melodious voice (in contrast to my high-pitched Brummie Wednesday Addams) – and we hope that this will be a useful primer in the run-up to the publication of the report expected in mid-June 2021.

You can hear it on one of the links here.

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Some early reviews:

https://twitter.com/JonathanMolesUK/status/1399319292362035201

 

Hyper-partisanship and the lack of constitutional self-restraint are the twin poisons attacking our bodies politic

30th May 2021

Some thought it was all over when Joseph Biden won the presidency – Trumpism was defeated and there could be a return to political normality.

But Trumpism is continuing – even without the presidency and indeed even without access to Twitter and social media.

Trump has gone, but Trumpism has not.

This can be seen in the failure of sufficient Republicans to support a commission to report on the attempted insurrection on the 6th January 2021.

The practical reason for this failure appears to be the effect such a commission and its report will have on the American mid-term elections.

This hyper-partisanship and the lack of constitutional self-restraint is not good for the sustainability of the body politic of the United States – just as similar hyper-partisanship and lack of constitutional self-restraint is not good for the United Kingdom and other (hitherto) liberal democracies.

It poisons the well, it pulls the rug, and so on.

The immediate political gains are at the possible expense of longer-term constitutional viability and sustainability. 

And although constitutions can be robust and rugged old things – they are not invulnerable – and it is not inevitable that liberal constitutionalism will always win out.

Brace, brace.

Democracy vs Liberalism – the worrying but significant 2014 speech of Viktor Orbán

29th May 2021

One of the more complacent views of the last few decades is that there is a necessary link between democracy and liberalism.

The notion that if you believe in one then you believe in the other.

And, in turn, there is the converse view – that illiberals will tend to be undemocratic, if not actively anti-democratic.

This is assumption is evident in a spate of books over the last few years about the death of democracy where, if you read carefully, they describe the (possible) death of liberal democracy.

For – and this is still a shock for many – there is nothing necessarily liberal about a democracy.

It is possible – and indeed not uncommon – for a conservative bloc to mobilise sufficient support to prevail in elections.

There can sometimes even be sufficient conservative support for illiberalism to be majoritarianism.

Liberal democracy is only one form of democracy (and, also, of liberalism).

The notion that illiberals are also undemocratic, if not anti-democratic, is a comforting notion for the superficial liberal.

The truth is that in any democratic system there will be a great deal of opposition to liberal views.

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Here it is instructive to read this 2014 speech (in translation) by the Hungarian prime minister Viktor Orbán – who visited the United Kingdom this week.

It is a speech that should be read in full by any liberal and anyone else who wants to understand the illiberal turn in modern politics.

It is perhaps, in its way, one of the most politically significant speeches of recent years – though what it signifies is not pleasant.

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One of the things that stands out is in the speech that it is openly – explicitly – ‘illiberal’.

An exposition of liberalism is set out (and not altogether inaccurately) and then critiqued.

This dismissal of liberalism is unapologetic.

It is blatant, with no sugar-coating.

Orbán is an illiberal and he knows it, and he claps his hands.

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Another thing that stands out is that – unlike many Western (supposed) defences of (and apologies for) liberalism, it is not flimsy.

It is an articulation of an illiberal position.

The position being articulated is vile and wrong, but it is not superficial.

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A third thing that stands out, of course, is that it does not really explain, still less justify, the specific assaults on civil society in Hungary of his government – it is a speech which largely stays in the realm of the abstract.

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And the fourth thing which is striking about the speech is that – on the face of it – it is not an undemocratic speech – it is the speech of a politician who seems confident that there will be sufficient political support for illiberalism within a democratic system.

It is even a speech of a politician who does not see membership of the European Union as being incompatible with his illiberalism.

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This blog is written from a liberal, constitutionalist perspective.

But as a practical blog, it is not enough to disdain illiberalism, let alone deride it.

As the old saying goes: know your enemy.

Scoffing at Orbán – just like sneering at Donald Trump or Boris Johnson – is not a complete political answer to the challenges presented by modern illiberalism.

As long as these individuals and their parties can mobilise their bases, they will use political means to defeat or hinder liberalism, and they will claim to be democratic in doing so.

The ‘will of the people’ is rarely invoked by those who respect the wills of individual people.

And what happens when liberal democracy is, well, trumped by democracy itself?

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Did the Home Office blink? – the significance of today’s announcement of a date for the Daniel Morgan report

28th May 2021

Today came the news that the publication of the report on the Daniel Morgan independent panel should be on 15 June 2021.

This is the report into the 1987 death of Daniel Morgan, the collapse of the many subsequent investigations and prosecutions, and the existence of (and the relevance of) any corrupt relationships between the police, the private investigation industry and the press.

The statement of the panel is here and should be read in full. 

This is, of course, welcome news.

It ends the stand-off between the panel and the home office – and, on balance, the home office has given way more than the panel.

The late intervention of the home office – to demand a last-minute ‘review’ of the report – is now unlikely to frustrate the publication of the report.

Delay and blocking

This statement means that, unless something happens to prevent it, there is now a fixed, imminent date for publication.

This should prevent the report being delayed indefinitely by the home office sitting on it during this (supposed) review.

If the objective of the home office was to provide room for delay (or even prevent) the publication of the report, then that objective looks like it has been defeated.

There is a little wriggle-room for potential further delay – but not as much as if there was no date set at all.

Redactions

The statement also deals with the issue of any home office redactions.

Any redactions that the home office insist upon will be identifiable – and so, it would seem, contestable in court.

Each redaction would be an action by the home secretary that could – at law – be looked at by the high court for its reasonableness and relevance.

Any redaction would thereby not necessarily be the end of the matter – but just the prelude for litigation.

The redactions cannot just be silently made, with no one to know.

Again this is a set-back if the objective of the home office was to have room to make such silent redactions.

Forewarnings and leaks

If, however, the home office had as its objective that it would be forewarned of the content of the report, this objective has been achieved.

This means that if – and it is only an ‘if’ – there is anything politically significant in the report then the home office will not have a shock and so will not be bounced.

It also means there is the possibility of leaks from the home office – perhaps to the media – in the days before 15 June 2021.

This is notwithstanding the controlled conditions for the review of the report – which will remind those with longer memories of Robin Cook and the Scott report.

Making sense of the Home Office intervention

As this blog has already averred, there appears to be no good reason for the late home office intervention.

The purported reasons do not add up – and they appear to be improvised and cynical.

As I set out in detail here, the choice of ‘national security’ and ‘the human rights act’ as grounds appear to have been for providing the maximum litigation cover for any home office delay, and not because of any genuine concerns.

I am not a conspiracy theorist by inclination – conspiracies do, of course exist, but usually to hide cock-ups, as only then will a number of people have the motivation and focus to act in concert.

As such I do not think there is any conspiracy between the home secretary and others to try and block or delay or gut the report.

The home secretary may well be (as a lawyer would say) on a frolic of her own in all this, without contact with anyone else with an interest.

It may well be that the home secretary simply did not like the idea of something being published by an independent panel beyond her control or involvement.

But whatever the true motive for the home office’s late bullying intervention, the statement today means that it is more likely than not that we will see the report published in two weeks, and possibly with few if any redactions.

The panel and its lawyers should be commended for facing off this illiberal and misconceived intervention.

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The cynical reason why the Home Office may be invoking ‘National Security’ and the “Human Rights Act’ so as to delay publishing the Independent Panel Report on Daniel Morgan

27th May 2021

There is a stand-off between the home office and the Daniel Morgan independent panel over publication of the panel’s report.

From the perspective of the Morgan family this is unfortunate – and even heart-breaking.

It is a horrible situation.

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The report will be important – whatever its content – for three reasons.

First: it will be nearest we get to a definitive account of the circumstances of the 1987 death of Daniel Morgan, the private investigator murdered in south London.

Second: it will also set out, as far as possible, how and why investigations and prosecutions kept failing, again and again – and the relevance (if any) of the relationships (corrupt or otherwise) between the metropolitan police, the press and the private investigation industry in explaining those failed investigations and prosecutions.

And third: it will be the nearest we get in practice to ‘Leveson 2’ – the general inquiry into the relationships between the metropolitan police, the press and the private investigation industry, an inquiry which has now been cancelled by the current government.

So far, the coverage of hacking and the other (so-called) ‘dark arts’ have given a lop-sided view of what happened, focusing on the press and newsroom culture – but the press was the customer in the wrongful trade in personal information at the relevant times – the ‘demand-side’.

What is still obscure is the ‘supply-side’ of what happened – especially the role of the police and the private investigators.

Even without the particular circumstances of the death of Daniel Morgan and its aftermath, it all would be an extremely complicated world to understand.

So it is no surprise that panel has spent since 2013 putting this report together.

And now the report is ready to be published.

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But.

The report has not been published.

The home office is insisting that they review the report before publication and they will not commit to a date for publication.

Under the terms of reference for the panel it is envisaged that the home secretary arrange for the report to be placed before parliament – and that would be the means by which the report would then be published and thereby enter the public domain.

The understanding is (though I am aware of different opinions) is that by placing the report before parliament that it would thereby acquire absolute privilege – which means that nobody can be sued for defamation in respect of the content of the report.

Whether or not this legal analysis is correct, it was certainly envisaged that his would be the procedure and – regardless of the legalities – it is certainly the fitting way for such an important report to be dealt with.

Not many reports are solemnly placed before the parliament by the home secretary.

And although some say the report should just be leaked, this is one report that – perhaps more than any other – should be published ‘by the book’ – as it is ultimately about the rule of law itself.

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What is the reason for the current stand-off?

We appear not to have the true reason – but we do know this because the reasons so far given do not make sense.

According to one blogpost – which I cannot vouch for as I did not write it and I have not seen the underlying evidence for its assertions – there has been a succession of home office excuses for the delay.

Whether or not there have been earlier home office excuses for the delay, the current reasons are that the home secretary needs time to review the report because of the home secretary’s responsibilities in respect of national security and under the human rights act.

Balderdash.

Codswallop.

Flapdoodle.

Utter twaddle.

These cannot be serious grounds for the following reasons.

First, the home office do not yet have a copy of the report and so cannot know in advance whether a report into the circumstances and aftermath of a murder in a south London carpark in 1987 raises any current national security and under the human rights act issues in 2021.

Second, the report has already been vetted by the metropolitan police legal department who would have been able to identify any such issues – and indeed the home secretary would presumably have to rely on the metropolitan police for this supposed review, given the report deals with police operational issues.

And third, the panel has itself ensured that it has had experienced and extensive legal advice – and have followed the usual ‘Maxwellisation’ process of ensuring what is to be published would be legally sound.

Indeed, the terms of reference envisaged that the emerging findings of the inquiry and the final report could be released directly and freely to the Morgan family, and this provision would not make sense if there was a prior formal home office review stage.

The excuses of of national security and under the human rights act are improvised and artificial excuses to justify delay – and one suspects that there is not a single person inside or outside the home office who has a sincere belief in these excuses.

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But why these two particular excuses?

At first, it seemed a puzzle.

My best charitable guess was perhaps the home office simply did not want to set a precedent for immediately publishing reports that were outside the scope of the inquiries act.

Yet that did not explain why these two particular excuses were selected.

And then it became obvious.

This is all about litigation – and about providing cover for litigation risk.

National security is one issue that the courts will invariably defer (with nods) to the home office – and if the home secretary makes an assessment then even the current president of the supreme court will say this has to be accorded ‘respect’.

And the human rights act point, a clever one, is that under article 2 of the European convention there is a ‘right to life’ which again, once invoked, means that the courts are unlikely to conduct any balancing exercise.

The combination of these two grounds mean that the home office would be able to resist any judicial review of their delay – for government lawyers would just need to say national security and the human rights act, and a court would be unlikely to intervene.

And – and this is crucial – it also works the other way round: for if the panel threatened to publish the report itself then the home office could use the same two grounds for obtaining an injunction against publication.

Indeed, one suspects that the home office lawyers are currently insisting on formal undertakings from the panel that the panel will not publish the report directly.

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If my reasoning here is correct – and I cannot think of any other plausible explanation for why the home office has invoked national security and the human rights act – then the home office and its lawyers are engaged in a cynical exercise of making the delay to be litigation-proof.

Such gaming of the judicial process is not necessarily an abuse of process – indeed civil lawyers often use such tactics and even have a big white book packed with ways by which parties can win cases other than on the actual merits of the case.

But if such tactics are legally permissible that does not make them normatively acceptable.

And in these circumstances, such tactics are nothing other than disgusting. 

There is no good reason for this delay – and the brother of Daniel Morgan should not have had to tweet this.

The independent panel report should be published without any further delay.

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How to treat the parliamentary evidence today from Dominic Cummings

26th May 2021

Dominic Cummings, the former assistant to the prime minister excites strong opinions – and it is difficult to escape those strong opinions when you write or think about him.

But the attempt should be made – as what he had to say at today’s remarkable parliamentary committee hearing may or may not be important.

The approach I would recommend is as follows:-

First – avoid confirmation bias – especially when it is from an unexpected source.

Many of the things he said confirm the prejudices of those critical of the current government generally and the prime minister in particular – and there was glee to hear him, of all people, say these things.

You should be especially wary of things which affirm what you think must be true.

Second – be aware of the selective nature of the evidence.

For example – some ministers were damned, but other ministers – such as the chancellor responsible for ‘eat out to help out’ and uncertainty over furlough payments – were not criticised

Nor was the cabinet office minister blamed for any difficulty in his department.

If this was a general critique of ministerial competence then it was lopsided – and almost vindictive.

Third – be aware also of motivation.

The former assistant to the prime minister wants, of course, to be vindicated – not least because of the Barnard Castle tarnish.

He has an understandable desire to have been right all along – and his failures only being that he did not do more sooner.

And fourth – there is the issue of honesty.

The former assistant to the prime minister once admitted that the £350million-a-week promise for the NHS was a convenient lie.

He was also one of those ministers and advisers who could not and did not sign the statement of truth (under pain of perjury) about the true reason for the prorogation – and it was the lack of such a witness statement that meant the government lost the case in the supreme court.

Indeed, the fact that if he said something untrue today may have been a contempt of parliament holds no fear for him – as he already has been held in contempt of parliament and with no consequences.

It was a win-win situation today from his perspective – he could take the benefit of absolute parliamentary privilege to make serious allegations, but with none of the sanctions for that benefit being misused.

Nonetheless, a lot of what he said ‘rang true’ – and it may be that there will be evidence that substantiates his many general and detailed claims of wrongdoing by others – some of which are highly serious.

And nothing he said should be dismissed out-of-hand just because he was the one who said it.

Everything he said may be true.

But everything he said, for the four reasons above, needs to be corroborated.

Today was great political theatre – but more is needed before any reliance can be placed upon this great political performance.

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Why ‘how to regulate’ guides are invariably nice and colourful but impractical

25th May 2021

It would be unfair to name the particular public body responsible but a new guide to regulation has just been published.

The guide is lovely to look at.

Pages and pages of colourful graphics, with boxes and arrows.

A well-meaning sequence of platitudinous or vague statements are made which together are to be taken as a guide to good regulation.

The guide is pretty and clever and earnest.

And the guide seems completely useless.

One suspects no better regulation will be made because of it, nor any better regulatory decision.

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The problem is not that, on its own terms, it is wrong.

On its own terms, the guide is quite wonderful.

Like a self-contained and lovingly illustrated code in some invented language like Dwarvish or Klingon or Dothraki.

The obscure illuminated manuscripts of our public policy age.

But the guide – and many guides like it – may not correspond to reality.

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The essence of regulation is practical, not theoretical.

The basic question is: what behaviour or outcome would happen (or not happen) but for the regulatory measure?

How will things actually be different (or the same) because of the intervention (or lack of intervention)?

And will those things really be more desirable than otherwise would be the case?

If the regulatory measure – either a rule or a decision – does not in practice affect behaviours or outcomes as desired, then it may be many things but it fails as a regulatory measure.

So: the best guide to regulation is work backwards from what is happening (or otherwise would happen) and see how that behaviour or outcome can be made to be different (or forced to stay the same) in a way desired.

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The problem with flowchart-based – and also with checklist-based – regulation is that it makes the regulator feel that something is being done.

Like the old joke about the driver who always looks in the rear-view mirror before pulling out – it does not matter what is coming, as long as they have looked in the rear-view mirror they can proceed to pull out.

In so many fields of human activity – from drug-taking to sex work to public health rules for coronavirus and electronic surveillance and public procurement (just to take a few public policy bug bears) – there is a belief that there must be regulations, as something must be done.

The problem with colourful guides on ‘how to regulate’ the process takes priority over practical effect and implementation.

There should perhaps be a new regulator to prevent flowchart-based regulation.

Perhaps it can be called OffChart.

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Why the Daniel Morgan Independent Panel legally can and should disclose the full report to the Morgan family at the same time as to the Home Office

24th May 2021

Today in parliament there was a short debate on the delays in the report in respect of the murder of Daniel Morgan, why there were successive collapses of investigations and prosecutions, and the significance of potential corrupt relationships between the press, the police and private investigation industry.

The link for watching the debate is here – and it is worth watching in full.

You will rarely see a junior minister so obviously unconvinced by their own brief – and there is an apparent contrast between her conciliatory manner and the content of what she had to read out.

(It is not unusual for junior ministers to stand in for cabinet ministers for these urgent debates – though it would have been appropriate for the home secretary to have been there.)

You get the impression that nobody – inside or outside of government – is actually convinced of the ‘national security’ and ‘human rights act’ points being taken to justify the home office’s position.

Indeed, both points seem to be ‘lines to take’ – formulated by some clever central government lawyer – as giving wriggle-room to the home office.

But neither contention adds up.

The panel report is not under the Inquiries Act 2005 – and so the exceptions under section 25 do not apply.

The most charitable explanation I can can conceive is that the government wants to avoid creating a precedent for other non-2005 Act reports being free from the same exceptions.

There are more plausible, less charitable explanations.

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The reason why the report being presented to parliament is legally important (as well as constitutionally appropriate) is that it will give the report absolute privilege in respect of defamation when it is published to the general public.

And although a publication of the report directly to the public by the panel without going through the home secretary and parliament would be an exciting event – and no more than the home secretary deserves – it would not be legally prudent. 

But it is worth looking at the terms of reference carefully on this point – as there may be another way forward in the face of home office obstinacy.

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The terms of reference are here – and they should be looked at in full.

Paragraph 6 indeed provides:

‘The Independent Panel will present its final Report to the Home Secretary who will make arrangements for its publication to Parliament.’

But one sentence in the following paragraph 7 is also interesting:

‘In the meanwhile, it is also envisaged that the Panel will brief the family incrementally, both on the progress of its work and on its emerging findings.’

And so is also paragraph 4(c):

‘…the Independent Panel will…brief members of the family through a final report which would be made available first to the family and then to the public at large’.

In other words: it was envisaged in the terms of reference that, although publication to the world was to be done through the home secretary and parliament, it was open to the panel to share its findings and indeed the final report directly with the family.

(Note the ‘will’ in 4(c).)

I do not know if the panel has shared the findings and the final report with the Morgan family – but not only is there nothing in the terms of reference to prevent the panel from doing this, the terms of reference expressly envisage this being done.

And there would be no greater check on any untoward redactions by the home office than the Morgan family having the original, unredacted report before them.

 

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The Daniel Morgan panel report will be the nearest we ever get to Leveson Part II

23rd May 2021

We have a lopsided view of the bad things that were happening in respect of the media around the turn of this century.

The focus has been on the press – journalistic ethics, newsroom culture and the breaches of the civil and criminal law.

But those did not happen in a vacuum.

What elements of the press did was part of a wider problem, which involved the metropolitan police and the private investigation industry.

Of course, the press took advantage of these relations and was the source of a lot of the money involved.

But there were wrongs being committed on the supply-side of the trade in personal information.

Had the Leveson inquiry continued with its phase two – that was to look at the dealings of the press with the police and so on – then we would now have a more rounded picture of what went on.

But the Leveson inquiry will now never continue to phase two.

And so the nearest we will get to a documented understanding of this supply-side will be the independent panel report on the Daniel Morgan case – a case which goes to the heart of the problematic relationship between the press, the police and the private investigation industry.

It may well turn out to be the best record we will ever get of what then happened – and how so many got away with so many things which they should not have done so.

 

The Crown and the Media – from phone hacking to the Dyson report

22nd May 2021

If anyone doubted the often indirect power of the crown in the public affairs of the United Kingdom then this week’s media news about the Dyson report is a useful reminder.

A reporter fabricated documents so as to engineer an introduction to a member of the royal family and then lied about it.

This sort of ‘blagging’ – as  some of those in the media would call it – was one of what was once euphemistically described as the ‘dark arts’.

And as a result of the exposure of this dishonesty, the future of the BBC (itself founded by royal charter) is now uncertain.

To throw the future of the United Kingdom’s state broadcaster into doubt requires a significant intervention.

It is an example of how the presence of a royal element to a story can electrify things.

And it is not the first time.

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The phone hacking scandal – which affected the press in a way that the Dyson report may affect the BBC – also came about because it had a significant royal element.

In short: the telephones of the royal household were hacked – just as the telephones of celebrities and newsworthy non-celebrities were hacked.

(Hacking was another of those ‘dark arts’.)

But because the target was the royal household, a different part of the metropolitan police became involved instead of those parts of the metropolitan police that the press then had a close (and mutually advantageous) relationship.

This in turn led to a police raid of a private investigator’s office, and the documents then seized in turn were a media-legal time-bomb which exploded when disclosed about the time of the Millie Dowler murder trial.

The story is set out in this thread by James Doleman, who reported on the trials (and with whom, I must add, I disagree on other issues):

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Had the mobile telephones of the royal household not been hacked then it is plausible that – even now – we would not know anything about the real extent of telephone hacking.

Such is the indirect power of the crown in our public affairs.

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