Category: Constitutional Law

A “nice” parliament?

1st February 2022

Today the speaker of the House of Commons said he would like parliament to be “nice”.

For this, and for insights generally, listen to this clip to the end:

Like courts, parliament is a place for conflict and for those conflicts to be resolved.

And, again like courts, parliament has developed conventions and an etiquette for smoothing the jagged edges of that conflict.

“The honourable member” is the parliamentary equivalent of “my learned friend”.

Courts – at least civil courts – have also rules on when a person can be accused of dishonesty.

It is not an allegation that can be made by a lawyer lightly.

But it is an allegation that can, if there is evidence, be made in certain circumstances.

In parliament an allegation of dishonesty cannot be made – at least in debate.

An allegation of dishonesty has instead to be made in a substantive motion – see the commentary here.

As the historian Robert Saunders avers, this rule against accusing in debate other members of parliament of dishonesty was part of a wider understanding:

So we now have the ridiculous situation where nothing practical can be done to stop the Prime Minister – or any other member of parliament – from being dishonest…

…and if another member of parliament – grandstanding or otherwise) points this out in debate, it is that other member of parliament that is thrown out of the house of commons.

One can understand how the rules of the house of commons came to end up like this.

But that does not make the rules seem any less daft.

The solution, however, is not “niceness”.

Politeness, yes, and decorum and respect – just as courts (usually) have politeness and decorum.

But courts – while usually calm and polite and respectful – are not “nice”.

Courts can be places of horrible and raw human drama and conflict, where often difficult decisions have to be made that will, in turn, often ruin the lives of the parties involved.

To regard them as “nice” is to confuse form with substance.

A parliament also has to deal with often difficult decisions that will ruin – or even end – the lives of people at home and abroad, sometimes millions of people.

A parliament is a place of conflict and high tension – with immense consequences for real people.

As such, like a court, it is sensible to take off the rough edges of conduct and vocabulary, so as to take the heat and aggression out of exchanges.

But the underlying tensions will still be there – and these tensions need to be recognised if they are to be resolved.

Those tensions cannot be cured by “niceness” – and, indeed, a refusal to recognise those tensions risks turning those tensions into contradictions.

And that will not help anybody.

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Sue Gray’s time bomb – why this “update” means more trouble for the Prime Minister

31st January 2022

An “update” of the Sue Gray report was published today.

It did not say a lot – but it said enough.

Any competent close reading of the update would indicate that the final report will be even worse for the (current) Prime Minister.

There are (at least) three “gatherings” under criminal investigation that the Prime Minister either attended or knew about.

And for there to these gatherings to be a police matter means there is already evidence of serious and flagrant breaches.

And there are nine other gatherings to be investigated by police.

Given that the report – even in these stymied conditions – was able to say the following, this could not be more serious for the Prime Minister:

“ii. At least some of the gatherings in question represent a serious failure to observe not just the high standards expected of those working at the heart of Government but also of the standards expected of the entire British population at the time.

“iii. At times it seems there was too little thought given to what was happening across the country in considering the appropriateness of some of these gatherings, the risks they presented to public health and how they might appear to the public. There were failures of leadership and judgment by different parts of No 10 and the Cabinet Office at different times. Some of the events should not have been allowed to take place. Other events should not have been allowed to develop as they did.”

Accountability for these Downing Street parties – while everyone else was under strict lockdown – is only a matter of time.

That is why this report is a timebomb for Boris.

And in any sensible political system, the Prime Minister would now resign than let this timebomb explode.

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Perversion of the course of public business – today’s clumsy Met intervention in Partygate

28 January 2022

Sometimes things are not straightforward.

And sometimes things just become more complicated.

Today was one of those times.

This morning the Metropolitan Police took it upon themselves to request that the Sue Gray report only makes “minimal reference” to matters in respect of which the police are investigating.

The effect of this intervention may be that the report is published without detail of the more damaging aspects of the Downing Street partying.

This truncated/redacted report may even “clear” the Prime Minister – at least according to his political and media supporters.

There would also be the prospect of the police investigation taking no further action, with the damaging details never being made public.

This is probably more an accident than a design – but the effect is likely to be to potentially cloak the more damaging detail from parliamentary and public view.

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It is difficult to understand the Metropolitan police position.

As breaches of the (obviously relevant) Covid rules are summary only then there is no risk of prejudicing a jury trial.

Perhaps they want to disclose information in their own way in any interviews with suspects – but such investigatory convenience should not be an absolute check.

The world should not be organised entirely for the benefit of the police – especially when they have been tardy.

Perhaps there are more serious offences afoot – the alleged direction that “mobiles should be cleaned” could, depending on circumstances, be perversion of the course of justice – and some are saying (with hope more than expectation) that there may even be grounds for charges for misconduct in public office.

But what makes the police position preposterous is that they delayed investigating at all until the Gray inquiry did the police’s job for them.

And now the police have belatedly decided to do their job, they now wish to interfere with the normal course of public business.

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All this continues to undermine political transparency and parliamentary accountability.

Inquires and investigations often take matters away from the floor of the House of Commons or the press conference, and ministers and their supporters get a rhetorical (and sometimes legal) basis for not answering questions.

“We need to wait for…”

And politicians don’t need much excuse to not answer questions.

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The Metropolitan Police have, of course, an interest in this matter.

The parties took place bang in the middle of no doubt the most heavily policed area of the UK – Whitehall.

And the parties took place while the police were freely handing out huge fines to those breaking Covid rules elsewhere.

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Had the Metropolitan Police investigated this matter properly when it should have done – and there can be no evidence before Sue Gray and her team which is not capable of being ascertained by the Police with their greater investigative powers – then the police would not now be disrupting the publication of a report.

And there is perhaps a lesson here for those who clamour for police investigations of politicians and their circles: be careful what you wish for.

Police investigations do not always go in accordance with wishful thinking.

Sometimes police investigations can pervert the course of public business.

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The Choice

27th January 2022

There is a choice that has to be made by every supporter of the current governing party of the United Kingdom.

In essence the choice is: what price partisanship?

By ‘price’ is meant: what will need to be exchanged for maintaining support for the current Prime Minister?

The price currently on offer is the integrity of the constitution.

For the continuation in office of the current Prime Minister means that the torrent of lies and evasions will continue – and these lies and evasions will corrode our fundamental political arrangements until there is nothing worthwhile left.

In more concrete terms: the Prime Minister will continue to refuse to account for any wrong doing; he will continue to freely lie at the despatch box; he will continue to assume that the rules that apply to the rest of us do not apply to him and his circle; and he will continue to believe he can get away with all of this.

Like the Republicans under Trump in the United States, British Conservatives now need to decide whether to enter into a compact with those who will casually bedevil the constitution.

Is the perceived political popularity of supporting this Prime Minister worth the price that this diabolical agent will extract from our constitutional arrangements?

This is the ultimate political choice of our times.

And the worrying thing is that so many government supporters do not – or will not – face up to the fundamental choice now before them.

Brace, brace.

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Rees-Mogg’s claim about us becoming a presidential system

26th January 2022

While we wait for the Sue Gray report, here is something said by the Leader of the House of Commons Jacob Rees-Mogg:

Rees-Mogg, of course, is the government minister who gave the Queen the unlawful advice on prorogation.

You would think that him now promoting a presidential system would be a further discourtesy to the Queen in her platinum jubilee year.

But even on the substance of the contention, it is historically and constitutionally illiterate.

In the last fifty years only Heath (1974), Callaghan (1979), Major (1997) and Brown (2010) have ceased to be Prime Minister by reason of a general election.

In contrast: Wilson (1976), Thatcher (1990), Blair (2007), Cameron (2016) and May (2019) were all replaced as Prime Minister without any general election.

This is because we have a parliamentary system and, given our uncodified constitution, there are many ways by which a Prime Minister can be replaced without a general election.

Going further back, one can also look at the stark examples of Asquith (1916), Chamberlain (1940) and Eden (1957) – who all were replaced after their respective military misadventures without any immediate general elections.

Rees-Mogg is correct that, in terms of political-media culture, Boris Johnson projects a presidential style.

But this should not be confused with the constitutional position.

There is nothing to prevent there being a new Prime Minister without a general election.

And, indeed, until and unless the Fixed-term Parliaments Act is repealed, any more immediate general election would in any case require a majority in the House of Commons to support it.

The most concerning thing about this, of course, is the authoritarian implications of Rees-Mogg’s contention – for it undermines parliamentary democracy.

And this authoritarianism, and subversion of parliamentary democracy, is part of a worrying trend.

Brace, brace.

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Two things about the launch of the Met’s Downing Street investigation

25th January 2022

Well.

Downing Street is now bing investigated by the Metropolitan Police.

And we are told that the Sue Gray report will not be ‘paused’ – and that it may even be delivered to the Prime Minister this evening, with it being published tomorrow.

What can be usefully said about this?

Perhaps two things.

First, look (again) at the Terms of Reference – that is the best corrective to getting carried away with what the report may or may not include.

In particular note that it is structured as a fact-finding exercise.

Indeed, had Gray been tasked with apportioning culpability then there may have been reason for the report to be delayed pending the police investigation.

What Downing Street gained by making it a fact-finding exercise they lost by not having a plausible excuse for it to be delayed at this stage.

And second, note that the Terms of Reference say:

“As with all internal investigations, if during the course of the work any evidence emerges of behaviour that is potentially a criminal offence, the matter will be referred to the police and the Cabinet Office’s work may be paused. Matters relating to adherence to the law are properly for the police to investigate and the Cabinet Office will liaise with them as appropriate.”

This probably means that a government lawyer has had to advise on whether the threshold has been met for evidence to be referred to the police.

And – if so – this means that on that advice, Sue Gray has been satisfied that evidence does need to be referred.

In essence: for this evidence to be referred a government lawyer and a senior official have already had to be satisfied of its seriousness.

And, in commencing an investigation, the police concur.

This does not mean that anyone is necessarily guilty.

Suspicion does not mean guilt.

But.

The evidence uncovered is so serious that a certain threshold has been met.

Brace brace.

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Why Nusrat Ghani is right to want to see the Terms of Reference for the new inquiry

24th January 2022

Another week, another inquiry.

This new one was announced this morning:

Yesterday there was not going to be an inquiry – and the Lord High Chancellor (who is also Deputy Prime Minister) was sent out to say so on television:

Nusrat Ghani MP – the complainant – had yesterday made a sensible, crucial point in response to the contention that she should have complained to the Conservative party.

It was a government business matter – not a party political matter:

Perhaps Boris Johnson does not comprehend this distinction between party and state.

Anyway, that position could not hold, and so an inquiry was announced.

And this led to another sensible, crucial point from Ghani:

“I look forward to seeing the terms of reference.”

Regular readers of this blog (and my tweets) will know that the shape of the terms of reference (as well as control over evidence flows) will tend to shape the results of any investigation or inquiry.

As techies say: GIGO.

Only the naïve think that just because there is an investigation or inquiry then – as if by magic – the resulting report will be suitably scathing.

What are called ‘whitewashes’ do not have to be by reason of deliberate cynical decisions by those investigating or inquiring – but instead can come from the terms of reference or the evidence made available.

Wise ministers facing investigations and inquiries know this – and government lawyers certainly do.

And so, it is refreshing to see, do wise complainants.

 

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Accountability needs transparency, and both need to be enforceable by legal remedies

23rd January 2022

This law and policy blog has many great comments – often better than my posts – and there was a comment on yesterday’s post that had a particularly striking passage.

‘Alan’ said:

‘Accountability is impossible without transparency. It’s also impossible without the power to create remedies.’

This is spot-on – and it is worth unpacking.

Accountability is, of course, a Good Thing.

It is also a vague thing – though regular readers of this blog (and my tweets) will know that I usually take it to mean that a person can be required to give an account of themselves.

(Accountability/account -geddit?)

And a common complaint on this blog (and my tweets) is that those with political power are deft in avoiding giving accounts of what they do, either through rhetorical devices or by frustrating or circumventing checks and balances.

But.

The easiest way for a person with political power to evade accountability is simple.

It is by you not knowing what they are doing or not doing.

And so, in this way, the best way means of having accountability is by having transparency.

For it is only then that you will know what questions to ask and evidence to demand in respect of what politicians and officials do or not do.

But.

(A second but.)

Transparency is of limited import unless it can be enforced against the will of those with political power.

And here we have the further problem – especially in the United Kingdom – of traditions and structures that make it almost impossible for anyone outside public bodies to find out what is going on – unless those with public power allow it.

Here one can point to, for example, official secrets legislation that is as tough as freedom of information legislation is weak.

We have well-resourced taxpayer-funded government press offices that will not tell the media anything unless it suits the government of the day.

We have weekly lies and non-answers in parliamentary debates.

And so on, and so on.

There is almost nothing which anyone outside government can do to force this transparency.

There are no – or almost no – remedies.

Here ‘remedies’ are, in general, what a court can order to make a person to do something they do not want to do, so as to put right a situation.

But it is rare to get a court to make any order to compel a public body so as to disclose a thing it does not want to disclose.

And so, as ‘Alan’ avers, without remedies there will not be accountability and transparency.

Accountability – and even transparency – does not mean a thing unless you can compel those with political power to give their accounts against their will by going to court.

The question is: how can we have stronger remedies against public bodies so as to force through accountability and transparency?

Any ideas?

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Why the Downing Street parties matter from a law and policy perspective

22nd January 2022

If one day some unlikely but bored person was browsing the internet and looking through old posts on this blog, they would wonder why so many recently have been about parties over a year ago in Downing Street.

Russia is being aggressive in Ukraine, key voted and court cases are being lost in the United States, and this government is pushing through illiberal legislation on protests and refugees.

Surely, that person would ask, there were more important things in January 2022 for a law and policy blogger to write about?

Well.

They may have a point – and perhaps it will look odd.

But.

Law and policy bloggers and other commentators have to  deal with situations as they find them.

And the Downing Street parties, which on one level are the most trivial of things, are significant in practical law and policy terms – and not just because of the public interest in the subject.

The Downing Street parties and the Sue Gray investigation raise crucial questions about accountability in action: the Prime Minister and other ministers are using a civil servant (who is not even the most senior official in her own department) as the means of avoiding and deflecting accountability to the House of Commons.

By itself, this makes the affair of key constitutional significance.

The result of this report may lead to a Prime Minister losing office – a possibility that by reason of our uncodified constitution and its lack of formal mechanisms for removing sitting Prime Ministers from office is always one of the most fascinating moments that law and policy can provide.

The news story also indicates – perhaps demonstrates – the contradiction in the attitude to rules between the partying elite in Downing Street and the obligations which were accepted (and imposed) upon the rest of us.

And the Downing Street parties issue also shows us about the extent to which our body politic can deal with the political food poisoning  caused Boris Johnson’s ceaseless dishonesty – can it be vomited out?

Or will linger in the system, causing increasing pain and consternation?

(I had severe food poisoning over Christmas, and so this analogy comes readily to mind!)

Of course: the incidental subject matter is of little importance.

But sometimes little things can be a useful way into big things.

And there are few bigger things in law and policy – and in our constitutional affairs – than about how a Prime Minister can be removed, about how accountability of the government to parliament can be enforced and avoided, about the legitimacy of rule-making and the tolerance of law-breaking,  and whether the system is robust enough to survive the subversive hyper-partisan dishonest politics of Johnson.

So this is why this blog is following this situation so closely.

Who knows what will come of it?

What do you think will happen?

Comment below.

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The political addiction of hiding behind ‘inquiries’

20th January 2022

One day, perhaps soon, perhaps next week, Sue Gray will report on her investigation.

And then, over time, the Sue Gray investigation will fade from memories until only political obsessives will remember what it was ever about.

But.

These inquiries and inquiries are, in general, a Bad Thing.

This blog recently averred that such after-the-event inquiries and investigations are generally (but not always) not a welcome thing – as they usually signify a failure of the institutions of the State to properly scrutinise and hold accountable the executive at-the-time.

This, however, is not the only problem.

These investigations and inquiries are now becoming the go-to political and rhetorical device for evading any accountability.

That the Prime Minister and other ministers have spent the last few weeks evading accountability to Parliament and the media by reference to what is only an internal cvil service investigation is already a stock political joke.

One wonders what will happen when the Prime Minister and other ministers cannot, as a political and rhetorical reflex, any longer just incant the Sue Gray evasion spell.

Indeed one half-expects Boris Johnson to next week announce a further inquiry by Sue Gray to explain the meaning of the first investigation, so useful is this as a means of evasion.

One has to allude to Douglas Adams’s Hitchhikers’ Guide to the Galaxy to convey the full absurdity of the situation.

On the face of it, it seems terribly reasonable to say one has to await the results of an investigation.

If it said earnestly enough, the response will be understanding nods.

But each time it is used as an excuse not to give a substantive answer to a probing question, accountability is undermined.

And if politicians could get away with using it as an excuse for avoiding any accountability they would do so.

At some point there has to be a stop to this.

Court hearings – fine, yes, they should not be gainsaid by parliament.

But anything less – even statutory public inquiries – should never be an excuse for politicians not being accountable.

And there should be a prohibition on any civil servants – whether the cabinet secretary or otherwise – being charged with such investigations when they deflect political accountability.

That is not what the civil service is for.

Ministers love having some way of escaping actual accountability – they will tend to flock to whatever means are available.

But, unless this tendency is checked, our ministers will become even less open to scrutiny.

This dreadful and illiberal and undemocratic habit has to end.

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