Category: Accountability

Waiting for yet another report

20th April 2023

This evening those who take an interest in Westminster politics are waiting for yet another report.

The report – this time into allegations against Dominic Raab, which he denies – has been delivered.

It is reported Raab has read it and sees no reason to resign, and so it is now up to the Prime Minister whether Raab should be sacked, and the Prime Minister has not decided.

It seems not vey long ago we were all waiting for the Sue Gray report, and there have been various other reports and inquiries, some of which have been quietly abandoned.

The purpose of this short post is not to preempt the report: I have not seen it and, as of today, almost certainly neither have you.

Instead it is to mark that, again, reports and inquiries are taking the place of traditional politics.

Perhaps this practice is a good thing: that information is compiled before a decision is made.

But perhaps it also a bad thing: for it enables ministers and others to avoid and even evade responsibility and accountability with an investigation takes place.

It almost a contracting-out of democratic and representative functions, at least in the short- to medium-term.

And the practice is now as much a part of our polity as the more formal elements that would be detailed in a constitutional text book.

Somebody should maybe commission a report into the practice, so that we too can put off doing anything about it.

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The problem of PDD – the Public Display of Defendants

5th April 2023

Let us start with the old adage: justice not only has to be done, justice must also be seen to be done.

The phrase is sometimes attributed to this very short judgment from 1923, which contained:

“…justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

The saying reminds us that justice is not only about process – it is also about performance.

An adjudication by a court not only resolves a dispute between parties (even if one of the parties is a prosecuting authority) but is also a social fact that, in turn, goes to whether there is justice in a community as a whole.

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In the last week there has been two striking examples of the performative element of justice.

One was in a Manhattan courtroom, where one defendant was photographed with his attorneys in a courtroom, but he was spared the “perp walk” and other humiliations.

Another was in an English courtroom, where the convicted murderer refused to come up from the cells to attend sentencing.

The Secret Barrister has written well and convincingly about the latter incident.

As the Secret Barrister indicates, this may be a problem which does not have an easy solution, despite the political and media clamour that something must be done.

There is no obvious way that a defendant can be coerced into respectfully attending their sentencing hearing.

Convicts facing life sentences have no real concerns about additional years.

And there is nothing straightforward that will prevent a prisoner gurning and grinning throughout a sentencing, so as to make the victims and their families yet more uncomfortable.

A judge ordering such a distracting and disruptive defendant to be taken back down to the cells defeats the purpose of forcing them to attend the sentencing, if you think about it.

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There is perhaps a deeper and more difficult question here.

At what point does the performative element of sentencing become a thing in itself, rather than the means be which we can see that justice is being carried out?

The history of punishment is full of examples where the PDD was geared to humiliate the convict as an objective by itself.

But.

This sometimes backfired.

For example, those being taken by cart to Tyburn to be hanged often became part of a carnivalesque spectacle.

There are even tales of prisoners playing up to the cheering crowds.

(Image credit)

And this is the problem about justice as theatre: not everyone solemnly plays the solemn parts to which they have been solemnly allotted.

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There has to be a balance between justice as a process and justice as a performance.

Surviving victims and their families should be heard, and they should have a say.

They should see justice being done, as it is done.

This is fundamental.

But those who promise surviving victims and their families that defendants and convicts can be coerced into some performance of contrition or seriousness may be falsely raising the hopes of those surviving victims and their families.

And it may be better not to make such irresponsible promises.

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It should always be remembered that the sentence is the punishment.

By seeking to add performative elements to the process of justice, in addition to any sentence, there is a risk that the performance – the PDD – becomes an end in and of itself.

And if so, then the actual punishment – the sentence – becomes secondary, an afterthought.

The PDD becomes the thing.

And this would be a mistake.

For justice should not only has to be seen to be done, justice has to be done.

The old adage works the other way round too.

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A stitch in time saves…

24th March 2023

Yesterday’s post on the appearance of Boris Johnson before the committee of privileges was supposed to the last on that topic…

…but.

It is really such a delicious constitutional moment – the legislature holding the former head of the executive to account with contested views of whether there should be a judicial process is a heady concoction of the supposed separation of powers.

And so here is a further thought, brought about by the lethal questioning of Johnson by the Conservative backbencher Alberto Costa on exactly what advice Johnson had taken, and from whom.

Johnson admitted that he did not taken legal or any other official advice before telling the House of Commons that he had been advised that the applicable rules and guidance had been followed.

It seems the advice was merely from a political adviser.

Well.

Johnson has certainly taken a lot of legal advice since.

If only he had taken legal advice at the right time, then he would have been saved having to take all this legal advice afterwards.

A stitch in time saves the need for any stitch-up later.

Have a good weekend.

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The Committee of Privileges and the Equality of Arms

23rd March 2023

Here are some further – and perhaps final – thoughts about the appearance of the former prime minister before the committee of privileges of the House of Commons this week.

Boris Johnson not only “lawyered-up” – he was as lawyered-up as it is humanly possible to be.

At his side as he gave his evidence he had a senior partner of the leading white-collar criminal law firm, and just behind him he had one of the leading barristers on due process and fundamental rights of his generation.

Before Johnson’s appearance there had been submission after submission – all at the taxpayers’ expense.

For a politician who has routinely derided legal aid lawyers and activist judges throughout his career, he certainly ensured he had resort to the best possible legal advice when it mattered to him.

And the strange thing is that this was not even a legal proceeding: this was entirely a matter for parliament and not for any court.

But Johnson was not taking any chances: he was lawyered-up to the hilts when no lawyers were needed at all.

However, because he had lawyered-up, and his lawyers had come up with elaborate and technical arguments about fairness and evidence, then the committee responded in kind.

And the the committee had access to its own legal advice, not least that of Sir Ernest Ryder – the former lord justice of appeal and senior president of tribunals.

There are few, if any, lawyers with a better understanding of the rules of evidence and fairness.

And so yesterday saw that the heavily prepped Johnson met and confounded by an even better prepped committee.

The questioning was short and relevant, and rarely outpaced the disclosed evidence, and Johnson was often left at a disadvantage.

For example, Johnson was forced to concede that the “advice” on which he supposedly advised was not from any official or lawyer – but from a political appointed adviser.

Like a tag team, each member of the committee had prepared the ground they had to cover so that as much ground as possible was covered.

From a lawyer’s perspective, the committee hearing was a forensic treat.

But.

A parliamentary committee hearing should not be such a legalistic exercise.

How much better, from a political perspective, if Johnson had simply turned up to tell the truth to a committee of his fellow members of parliament – instead of this legalistic arms race.

As it was, the committee was more than a match to Johnson’s legalistic approach.

And, of course, Johnson is (as this blog has previously averred) playing the long game of trying to influence what sanction follows, if any.

Yet in the shorter-term, the only thing Johnson has gained by lawyering-up will be a more tightly robust and comprehensive committee report than otherwise would have been produced.

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If only others in our society had access to such an equality of legal arms.

Even those who are facing an actual legal or judicial process.

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Johnson at the Privileges Committee – a post-hearing analysis

22 March 2023

The first thing to note about the appearance of Boris Johnson at the hearing today of the committee of privileges is that how little difference it will probably make to the committee’s report.

This is because the bulk of the report will be based on documentary evidence and the written evidence of other witnesses.

On certain points there is the possibility that the oral evidence of Johnson may make a difference – where it will rebut or even refute what the evidence would otherwise point to.

This is to be expected – and it can be compared with civil litigation where the respective merits of the parties’ cases can often become plain on disclosure of documentary evidence and the exchange of witness statements, long before any actual trial and cross-examination.

As such, today’s hearing was not an all-or-nothing gladiatorial bout.

For, as far as the committee’s report is concerned, what Johnson had to say may only have marginal importance, and on some points his evidence may make no difference at all.

Instead, and as this blog averred would be the case yesterday, Johnson gave the impression that he was playing to other audiences – that of his fellow parliamentarians (who would have to decide on any sanction) and to the media and the public (who would aid him in placing pressure on parliamentarians).

His combative and sometimes even confrontational performance makes no sense if you see it as an attempt to shape the committee’s report – but it made a lot of sense in his objectives to discredit the committee and any adverse report, and to frame himself as a victim.

Unfortunately for his strategy and tactics, he fell flat on at least a couple of occasions, including when he indicated that he would only accept the committee’s findings as fair if he was cleared.

No doubt if he is “cleared” he will hold the committee up as an exemplar of fairness and thoroughness.

And this will not be the first time he has wanted his cake and to eat it.

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Long term followers of this blog and this story may recall that it was observed last year that the “showing leadership” formulation was highly successful in heading off fixed penalty notices from the police.

At a stroke Johnson had a plausible explanation for being at almost all the gatherings – even thought those also attending got the penalties.

The only gathering for which that explanation could not work was for his own birthday, and so that is why he perhaps got a penalty for that and not any other gatherings.

I do not know if that theory is true, but it so far matches the facts better than any other explanation.

Today showed that Johnson is fully into his stride with the “showing leadership” explanation for his attendance at the gatherings.

The problem, however, is that a defence for his attendance which works with the police for breaking the criminal law does not necessarily work as an excuse for whether he knew the gatherings generally would be against the non-legal guidance.

It may well be that the price of heading off more than one fixed penalty notice is that Johnson now has no real answer to the hard questions of this committee about what he would have known at the time.

Johnson also had no real answer today to where some commentators think he is most exposed – his failure to correct the record as soon as he realised what he said was not correct.

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Nobody knows what the committee will decide – and, if they say Johnson is in contempt, what the House of Commons will determine as any sanction.

The committee may still find that Johnson made those statements in good faith and that he corrected the record in a timely manner – even though the other evidence points to a breach of privilege.

Perhaps.

But whether the “greased piglet” gets away (again) without serious sanction may be determined by the audiences to whom Johnson was playing today.

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The submission of Boris Johnson is a document of wonder and delight, but it should not be taken seriously for its supposed primary purpose

 

Today the privileges committee of the House of Commons published the latest submission of Boris Johnson.

Nobody takes this submission seriously, at least not for its supposed primary purpose – that of being the solemn defence of Johnson against the charge of culpably misleading the House of Commons (and/or not correcting the record in a timely manner).

Nobody, including Johnson himself and the clever wordsmiths who crafted the arguments in the document.

The document, however, may have a number of secondary purposes.

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First, there is the political and personal strategic purpose of Johnson at the end of the process being able to claim that he has been “cleared” and “exonerated” regardless of whether he is actually cleared or exonerated.

Here Johnson may have already written off the committee report, and he realises some culpability will be found.

And so what Johnson is looking at is how this document can frame what is happening for what then follows, especially any vote of the House of Commons on sanction.

If he can, for example, say that the committee accepted he acted “in good faith” but that he should have corrected the record sooner then he can say he has been “cleared” and “exonerated” even though the committee finds him in breach because of his correction.

As such he is working backwards from the tale he wants to tell after the committee reports.

(If the submission works so that he is not found in breach, then all the better – but he knows the evidence against him is compelling.)

If he makes it as difficult as possible for the privileges committee to land a clean blow against Johnson on “good faith” at the time the House was misled, then he may escape any significant sanction.

Johnson then “wins”.

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Second, there is the tactical purpose of framing the ongoing narrative of this story on terms favourable to Johnson.

He is sending signals to his media and political supporters, some of whom are happily repeating his talking points and believe Johnson to be some sort of a victim.

This spin maximises his political space for manoeuvre: he retains political support and (somehow) the benefit of the doubt of some who should know better.

This submission helps Johnson in defining the charges against him on his own terms, rather than on the committee’s terms: Is the committee being unfair? Did he act in good faith?  Hasn’t he apologised for what was on his watch?  And so on.

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Third, a long submission like this may have the purpose of justifying the considerable amount of public money spent on Johnson’s defence.

If Johnson had one strong basis for defence, a few pages would be enough, perhaps even one page, perhaps even one paragraph.

But as a general rule: the longer the litigation letter, the weaker the case.

This is 52 pages.

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And fourth (and here I am being playfully ironic), this document is a wonderful example of public art.

The amount of public money spent on this document could have been wasted on some drab statue or earnest mural, but here we have instead a thing of beauty.

Almost every sentence of this submission – almost every sub-clause – is a delight to be cherished, demonstrating real craft.

Take for example:

“the Committee did not identify a single document which suggested that I was informed or warned by anyone that any event at No. 10 was contrary to the Rules or Guidance”

Just take a moment to think about that, just as you would take a moment to ponder a clever detail in a painting or a poem.

And then you have the happy realisation that this could be said by almost any person facing any sanction at any time.

I did not wrong, the accused person could say, because I was not informed or warned that what I was doing was wrong.

Of course, Johnson like the rest of us during the pandemic were expected to know the rules and guidance for themselves – and. if not, we could always listen to the then prime minister Boris Johnson at one of his press conferences telling us about the rules and guidance.

There are many, many more such sentences.

This masterwork of a submission, full of artificial beauty, should not just be a submission to some parliamentary committee.

It should also be submitted to the Turner Prize.

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Will this submission serve the interests of the greased piglet?

Will it help him in anyway?

Will he be, with one leap, be free from serious sanction – again?

This submission shows how such an escape can happen – as long as you do not take it seriously as an actual defence.

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Ten thousand greased piglets

20th March 2023

This may be quite the moment for the interplay of politics and process.

We have this week the former prime minister Boris Johnson facing detailed questions before the privileges committee.

We also have the deputy prime minister and lord chancellor Dominic Raab facing the outcome of an inquiry conducted by a senior barrister.

We have rumours that former president Donald Trump is about to be arrested.

And last week we even had an arrest warrant for Vladimir Putin.

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These are not equally momentous, but they do have two things in common.

First, each of these are examples of politicians being held to account but not in any usual way: each is unusual.

The nearest to a normal political process is Johnson being examined by fellow members of parliament before a parliamentary committee: but he may have to evidence on oath, and the story of this inquiry is already packed with legal and media attacks and manoeuvring.

The inquiry into Raab is also not formally legalistic – but it is lawyer- and evidence-driven.

While Trump and Putin may face formal judicial proceedings.

Second, each of these processes features a mode of evidence-based questioning or inquiry that is structured so that the probing is difficult to evade or ignore.

And this is because politicians are adept at evading or ignoring questions.

In other words: politicians are good at not being accountable – that is, literally, at not giving an account of what they have done.

Normal political processes of accountability have in each of the examples failed – or in the case of Putin, never really existed.

And so resort is being made to forms of questioning and inquiry that are harder to evade or ignore.

Some may think that a law and policy blogger would applaud this: for at last there will be hard examinations that cannot easily be deflected.

But, no.

And this is because legal and political processes should be distinct and separate.

Instead of this being a triumph of the forensic method, it is a failure of the political method.

This is not a good thing.

Every lurch towards extreme parliamentary processes (Johnson), non-parliamentary processes (Raab), and judicial processes (Trump, Putin) is an implicit admission of the failure of political processes to check and balance those with political power.

Yes, some of these events may end up with striking political theatre.

And it may well be that such formal processes are the only way to deal with politicians who share the famous description of Johnson as a “greased piglet”.

But this shift is not a good thing on scale.

For soon we may go from a handful of greased piglets to hundreds if not thousands, with normal forms of accountability finally being accepted as redundant.

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