Category: Constitutional Law

Why ministerial resignations and sackings are often a substitute for genuine accountability for policy failures

22nd August 2021

A couple of days ago the post on this blog was about Dominic Raab and ministerial resignations.

In that post I averred that this clamour for a ministerial resignation tells us three things: that the minister had enemies within government (else the incriminating material would not be available); that the press was not protecting the minister; and that there was sufficient interest from the public for the issue to be subject of so many news reports.

The one thing the clamour did not tell us – at least directly – was whether the minister had actually done anything wrong.

And ministers get things wrong all the time – it is just that the relevant material is not disclosed and/or the press do not join the attack and/or few outside Westminster would be interested.

Accordingly, a sustained clamour for a ministerial resignation will always tend to tell you more about political weakness rather than policy failure.

In essence: a political scandal is a function of having political or media enemies and not of policy incompetence.

Now, I want to develop this point to say that even when there is a resignation, this is not an especially practical form of accountability.

The failures that may have prompted the resignation will usually still be there – and the catharsis of the resignation may change the political mood, but may not mean any substantial change, still less redress or compensation for those affected.

The minister who has resigned often does not have any long-term adverse effects to their political career – and after a suitable period, they will often resume their senior political roles – sometimes again and again.

In this way, a ministerial resignation is too often not an exercise in accountability – but a substitute for it.

The resignations – which now can have a ritualistic quality – are what the political and media classes do to pretend to themselves and others that there is accountability within our political system.

‘there are calls on [x] to resign’

‘there is increasing pressure on [x] to resign’

‘[x] has resigned’

[…]

‘[x] returns to office’

And nothing else changes.

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More effective accountability would be for [x] to stay in office, and account for failures and the reasons for the failures on the floor of the house of commons and before select committees, to appear before relevant public inquiries, and to co-operate with bodies such as the national audit office.

That is for ministers to own their mistakes and to, well, account for them – for that is the very meaning of that word: accountability.

But we get none of this, and we get cosmetic personnel changes instead.

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Much the same as the above can also be said for ministerial sackings.

Again, this is often political theatre – even soap opera.

Little if anything actually changes with a sacking, little is accounted for.

Some political drama, perhaps, that is forgotten in a day or two.

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Dismissals and resignations are, of course, part of any system of accountability – as resorts and sanctions.

But they are not the entirety of any meaningful form of political accountability.

For meaningful political accountability is the last thing any politician actually wants.

**

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The three reasons why Foreign Secretary Dominic Raab is facing demands for resignation – and why it is not because he has actually done anything wrong (which he has)

20 August 2021

There are serious calls for the foreign secretary Dominic Raab to resign – so serious that there is a real possibility that he may actually soon do so.

This political situation means, in practical terms, that three pre-conditions have been met.

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The first is that there are those in government – officials and/or politicians – who want the foreign secretary to resign (or at least be significantly embarrassed).

Without those in in government being opposed to the foreign secretary, the media would not have been provided with the material with which they are supporting the demands that he should resign.

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The second is that those in the news media also want the foreign secretary to resign (or at least be significantly embarrassed).

If the foreign secretary had good (that is, information supply) relations with the lobby and other political journalists then, even if somebody else in government was against the foreign secretary, he could ride this crisis out.

But, for some reason, the news media have done a cost-benefit analysis of Raab staying as foreign secretary, and they see no reason to shield him.

*

The third is that the public – or at least a significant portion of the public – care.

Something in this story has received public attention.

For even if those in government wanted Raab out, and the press saw no advantage in shielding him, there still would be no clamour for his departure – unless there was also any interest by the public.

It would be a Westminster village thing, and so on.

But there is public attention, and the public appear to be unimpressed.

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So, for there to be a serious political-media demand that the foreign secretary should resign the following three conditions have been met: (1) someone in government – minister or official – wants him out, (2) the media will not protect him, and (3) the public are sufficiently interested so as to make this a story.

The absence of any one of these three pre-conditions would mean the foreign secretary would probably be safe.

That these three pre-conditions have all been met is what makes him politically vulnerable.

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But.

Notice what is not one of the pre-conditions.

There is no pre-condition that the minister has actually done anything wrong.

That factor is almost politically irrelevant.

In fact, ministers get things wrong all the time.

But such ministers are usually safe – as no other minister or official wants him or her out, and/or the media will protect him or her, and/or the public are not sufficiently interested so as to make it a story.

This means there is no necessary corresponding link between (1) a minister doing (or not doing) something that means that he or she should resign and (2) that minister facing any serious clamour for him or her to resign.

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In an ideal polity, all ministers – all of the time – would be under the same critical scrutiny as to the performance of their duties as Raab is now.

And our political system would be better for it.

But most of the time – almost all of the time – such practical accountability does not happen.

Ministers get things wrong constantly, but they are usually protected.

And this is because no other minister or official wants him or her out, and/or the media will protect him or her, and/or the public are not sufficiently interested so as to make this a story.

So they are often safe.

And this is the difference between a political resignation or sacking story in the news – and there not being one.

This is the accountability gap.

**

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“The British constitution is whatever government can(not) get away with”

18th August 2021

There are only two particular things I knew about Austin Mitchell, the former member of parliament whose death was announced today.

The first was that, before he became a politician, he was a capable historian and the author of “The Whigs in opposition, 1815–1830”.

The second was his phrase that (I think) I can remember reading back in the 1980s but which I can only track online to 1997:

‘The British constitution is whatever government can get away with.’ 

This phrase has stuck with me as a politics student in the late 1980s, as a history student in the 1990s, and as a lawyer and constitutional commentator thereafter.

It is a perfect way of summing up a descriptive (as opposed to prescriptive) approach to constitutional matters.

(Anyone can witter on about what a constitution ‘should’ do, and constitution-mongering is easy – the difficulty is often working out exactly what in practice a constitution is – and is not – doing and why/how.)

And the phrase correctly focuses on the most serious predicament in the constitution of the United Kingdom: the lack of real checks and balances on the executive.

I personally prefer to render Mitchell’s dictum slightly differently, though the ultimate meaning is the same (emphasis added):

‘The British constitution is whatever government cannot get away with.’ 

In other words: if one was to plot all the instances where the executive cannot just do as it wishes then you would have a fair descriptive portrayal of the constitution.

To an extent that depiction would correspond with the text books on government and law – but also to an extent that depiction would not be in many academic books or papers.

As different as a picture of an elephant drawn by second-hand description against a high-resolution photograph.

So I know little about Mitchell as a person or as a politician – but that one phrase of his set off over thirty years of practical constitutional thinking and writing.

Or at least the constitutional commentary that I can get away with.

**

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The thin threads of power – politics and policy in an age of impotence

17th August 2021

When I was at school in the 1980s, the well-meaning progressive teachers showed us the film Threads.

The purpose, no doubt, was to make us pupils think critically about the cold war and the (then) nuclear arms race.

The primary impact it had on me was, however, different – and this was because of how the film portrayed the telephones in the bunker.

The film gave me a life-long fascination about the nature of practical political authority and control.

Here on YouTube some helpful person has put together the bunker scenes from the film:

If you watch these scenes with special regard to the telephones, you will see the telephones going from an active means of communication, to an inactive means, to being discarded, and then to finally damaged beyond repair.

And this matches the collapsing political authority of those in the bunker.

To begin with there are other people at the end of the telephone, and then there is nobody, and then ultimately nobody cares – or knows.

The political authority of those in the bunker, like the communications, is cut off.

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The lesson I learned from this as a pupil was it was not enough to have people who want to be in control and to believe themselves to be in control – there also had to be infrastructure, and for there to be people to accept that control.

Without such infrastructure and deference, those ‘in control’ are akin to the motorist wriggling a gear stick or pressing the brakes when both have been disconnected.

Those ‘in control’ may as well be playing with some grand political simulator.

And so I became interested in processes and transmissions and logistics and policies and rules and laws, and less interested in personalities and partisanship.

To answer the question: just what happens when the telephone rings out but it is not answered?

I suspect that this not the intention of the film makers, or the teachers.

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I mention this because of the impotence many in the West now feel about the fall of Kabul.

There is a general sense that something should have been done.

Here is our current foreign secretary:

The phrase “no one saw this coming” could be the motto of the United Kingdom government since at least 2016.

And here is Susie Dent, the subtle genius who no doubt will be regarded by future historians as the best political commentator of our age:

All true: but even if we had the foresight, what could have been done?

Of course: the execution of the final departures could have been better.

But beyond the arrangements for the final exit, it is difficult to see what further control the West could have had.

And part of the problem for the United Kingdom is that not only do we have no control, we also have no meaningful policy for what we could do.

Here, there are some hard truths on the lack of any meaningful United Kingdom policy in this RUSI post:

‘This week’s ignominy may be set instead against some of the blithe statements made just six months ago in the Integrated Review: that the UK will be ‘a problem-solving and burden-sharing nation’; that it already demonstrates a ‘willingness to confront serious challenges and the ability to turn the dial on international issues of consequence’; that the UK will embody ‘a sharper and more dynamic focus in order to adapt to a more competitive and fluid international environment’; and that it will ‘shape the international order of the future’.

‘The UK’s Afghanistan experience demonstrates none of this.

‘Instead, it speaks to a generation of political leaders who have too easily fooled themselves that being Washington’s most reliable military ally constitutes in itself an effective national strategy.

‘Such a relationship may be one element of an effective strategy, but it cannot simply be the strategy.’

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Yesterday this blog looked back to a 2017 Financial Times post where I put the old calls for ‘regime change’ together with other simple notions from the first part of this century, as part of a general politics of easy answers:

Since 2017, with the ongoing experience of Brexit but also with Covid and many other things, we still see the politics of easy answers.

The sense that all that needs to be done when something must be done is for politicians to want it to be done.

The hard and complicated work of policy and (meaningful) strategy is often not even an afterthought.

We have politicians in their modern-day bunkers, thinking that having telephones to hand will be enough for their will to be done.

But political power hangs on, well, threads.

And those threads snap easily, if they exist at all.

**

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No, Brexit cannot be ‘annulled’ or ‘cancelled’

14th August 2021

There are a couple of tweets on Twitter that are being heavily retweeted and liked saying that because of some court case or another, Brexit can be ‘annulled’ or ‘cancelled’.

These tweets are false – and those earnestly retweeting and liking the tweets are being given false hope.

The tweets are by knaves – accounts that either do or should know better.

And those knaves are taking those opposed to Brexit for fools.

There is a fancy that it is only the likes of Boris Johnson and Dominic Cummings and Nigel Farage and other Brexiters lie about Brexit.

But lies – and liars – are on the Remain side too.

And one can hardly complain about ‘fake news’ and ‘post-truth’ when one is also happily promoting social media posts that say false things that you want to believe are true.

That is not the opposite of Trump-like politics – but its application.

Brexit is a historical and legal fact.

There is no mechanism by which any court anywhere could order Brexit to be undone.

There is no court order that can undo Brexit.

There is no court of competent jurisdiction that can undo Brexit.

The only way the United Kingdom can (re)join the European Union is by the process under Article 49 (the one that comes before Article 50).

And such an application, if it is ever made, will not be quick – not least that the European Union would want to see a settled political consensus in the United Kingdom in favour of (re)joining.

It will be a slow slog – and may not even be in the lifetime of many reading this post.

Fantasy, of course, is more appealing for a supporter of the United Kingdom than this dull, distant prospect.

But that is all that these knavish tweets and tweeters are offering: fantasy.

Not all lies are written on the side of a big red bus.

**

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The Animal Welfare (Sentience) Bill does not do a lot – but the little it does do should be welcomed

9th August 2021

Over at the Times there is a news report about the Animal Welfare (Sentience) Bill currently before parliament.

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One response to this news is to doubt that cabinet ministers are sentient beings.

https://twitter.com/davidallengreen/status/1424658384020819971

But that would be silly.

*

The bill is worth looking at, both for what it does and what it does not do.

The six-clause bill – with three operative clauses – does very little.

Clause one provides for an ‘Animal Sentience Committee’ to be established and maintained.

There is, of course, no need for primary or indeed any legislation for a committee to be formed.

Committees can be formed and dissolved informally in central government.

Clause two provides that the committee ‘may’ (not ‘shall’ or ‘must’) produce and publish reports on which government policies might (not necessarily will) have ‘an adverse effect on the welfare of animals as sentient beings’.

The committee also ‘may’ (again not ‘shall’ or ‘must’) make recommendations for how the government may have ‘all due regard to the ways in which the policy might have an adverse effect on the welfare of animals as sentient beings’.

Again, this is weak stuff – the committee would have no legal obligation to produce any reports or recommendations at all.

The bill certainly does not place a direct statutory duty on departments to have ‘all due regard to the ways in which [a] policy might have an adverse effect on the welfare of animals as sentient beings’.

(Though such a duty should, in my view, exist.)

Clause three – the last of the operative clauses – is the one where there is (slight) legal kick.

When a report is published, the government ‘must’ (and not only ‘may’) lay a response before parliament within three months.

The government’s response may be in the barest terms, just saying the report and any recommendations are noted, and it will have discharged its duty.

And that is it.

That is all the bill does.

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On the face of it, there is nothing in the bill that warrants the response of some ministers as described in the Times article.

In particular, there is little formal scope for anything to be ‘hijacked’ by ‘activists’.

And even if the committee were to publish a critical report packed with ambitious recommendations, there is nothing which would legally oblige the government to do anything different from what it would want to do anyway.

The bill (like the international aid legislation and other examples) is not especially substantial legislation.

One is not surprised that the government’s website says that the bill is ‘enshrining sentience in domestic law’.

That word: ‘enshrining’.

Hmm.

*

But.

Perhaps because of my own bias (as a supporter of animal rights), I think there is something to be said for this legislation, weak as it is.

Even if there is no legal obligation on the government to follow any recommendations, it does oblige the government to publicly address any report and thereby any recommendations.

That obligation may turn out in practice to be as ultimately ineffective as the similar obligation on the government to report on why it is not complying with the international aid target.

It is, however, better than nothing.

It forces some accountability.

This duty being placed on a statutory basis makes it a little more difficult for the government to ignore any concerns altogether, which would be the case if the proposal had not statutory basis at all.

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The definition employed by the bill for animals – a lovely piece of drafting – is that ‘“animal” means any vertebrate other than homo sapiens’.

This is perhaps a little problematic – as there are invertibrates that are sentient and indeed highly intelligent (as this blog has recently discussed).

As Peter Godfrey-Smith sets out in his outstanding book Other Minds: The Octopus, The Sea, and the Deep Origins of Consciousness:

‘If we can make contact with cephalopods as sentient beings, it is not because of a shared history, not because of kinship, but because evolution built minds twice over.

‘This is probably the closest we will come to meeting an intelligent alien.’

The bill however provides that ‘invertebrates of any description’ can be added to the category of sentient animals by a secretary of state, spineless or otherwise.

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Usually I would be disdainful of such gesture-based ‘enshrining’ legislation – and I am sceptical about much of this bill.

The only direct merit of this legislation is in terms of forcing departments to take account in policy-making the sort of concerns that departments should be taking of anyway.

The recent turn away by the supreme court from allowing policy challenges in judicial review probably means that any non-compliance by a department with the committee’s recommendations will not get any judicial remedy.

But there could be indirect effects – though not the feared ‘hijacks’ of Rees-Mogg and others.

Courts when dealing generally with questions of animal rights will now be aware that the legislature had provided for a formal mechanism for policy recommendations about animal welfare to be taken seriously.

That may not make any direct difference in any litigation, but the existence of a statutory scheme would inform and promote judicial and legal awareness that the welfare of animals is not a trivial or extremist position.

This legislation is a small step towards enforceable animal rights (or at least to an enforceable duty that animal welfare be considered in policy-making) and it should be welcomed for what little it does – though that is a lot less than what its supporters and opponents aver that it does.

**

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Positive vs Normative Statements – You may not want to blame the lawyers but it remains a fact that lawyers facilitate(d) slavery, torture, imperialism, police brutality, and so on

8th August 2021

Today’s post is, in effect, a footnote to yesterday’s post on laws and systems – what connects slavery, torture, imperialism, police brutality and so on.

The reason for this post is that some commenters responded to yesterday’s post as if my primary purpose were to impose blame on lawyers for their role in the facilitation of slavery, torture, imperialism, police brutality and so on.

Lawyers were only doing their job, the responses went, and so it was rather unfair of me to blame them.

All they were doing was advising on the law, and that is what is lawyers do.

I was being unfair, the response averred.

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Such a protest is, in my view, to confuse positive and normative statements.

The existences of slavery, torture, imperialism, police brutality, and so on, in any organised society does – as a matter of positive fact – require the involvement of those who make and deal with laws.

This is simply because such things can only exist in an organised society if they are permitted – or at least recognised – by law.

And in modern societies, there is often a distinct profession for those who practise in laws: lawyers.

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Whether any lawyers – individually or collectively – should be regarded as culpable for recognising or permitting activities is a separate and distinct argument to the one advanced in yesterday’s post

There may, for example, be a ‘cab rank’ rule which obliged lawyers to make submissions to court that they personally did not agree with.

Or the world-view of the time and place may have meant that, say, slavery, torture, or imperialism were not morally contested – and so it may be that it would not be historically fair to regard the lawyers enabling such activities as being especially culpable.

But even taking such normative points at their highest, there remains the positive and undeniable fact.

That is the positive fact that slavery, torture, imperialism, police brutality, and so on, can only exist in any modern society because they are facilitated by those who deal with and practice in law.

And this remains true – even if we can excuse (or find excuses for) individual lawyers who participate(d) in recognising or permitting such activities.

***

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Laws and systems – what connects slavery, torture, imperialism, police brutality and so on

7th August 2021

This is a depressing post about law and policy, but it is one which is triggered by work I am doing on a particular project.

One of the things that I am researching and writing is about how lawyers made possible slavery and the slave trade – a topic that I wrote about at Prospect magazine, as well as in previous posts on this blog and on Twitter (see here and here).

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Of course: human beings are capable of being cruel to other human beings without laws or lawyers.

An individual person can coerce another person, can torture another person, can expropriate the possessions of another person – and so on – without any legal system or advisers in place.

That, unfortunately, appears to be the nature of our species – at least given the archaeological and historical record.

*

For enslavement, torture, expropriation – and so on – to exist in any organised society (that is, say, a human grouping larger than Dunbar’s Number) requires the help of norms and rules.

Either such practices will not be prohibited or such practices will be positively facilitated.

In other words: slavery, torture and imperialism in any society depend on systems of rules being in place that enable them.

And in such modern societies, where the practice of law is usually a distinct profession, this in turn means that such practices are facilitated by lawyers.

Lawyers draft the relevant legal instruments, and lawyers then advise those who seek to rely on legal rights as set out in those instruments and otherwise.

And many of these lawyers did so (and some still do, for example, with the torture memoranda in the United States) with absolute moral neutrality – they are not here to gainsay the law, but to advise on what one can get away with under the law.

A similar legal infrastructure exists still in respect of defending the police and other state actors in respect of coercion and lethal force against civilians.

None of this – from slavery to systemic police brutality – none of this would be possible, but for laws and those who make those laws work.

Of course: the saving grace is that there are laws which (supposedly) prohibit each of these things, and there are lawyers who will challenge such laws and defend those affected.

And such liberal and progressive laws and lawyers should be celebrated.

But.

It has to be laws and lawyers which take on slavery, torture, imperialism, police brutality – and so on.

And this is because such things only exist in any organised society because of laws – and often lawyers – in the first place.

All that liberal and progressive  laws and lawyers are taking away are what other laws and lawyers provided in the first place.

**

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Lord Reed’s signal: the politics of the Supreme Court (continued)

5th August 2021

Over at Prospect there is a wise and informative article on the supreme court of the United Kingdom.

The piece is by the law professor and former adviser to house of lords committee Alexander Horne.

It makes the point well that the supreme court is taking a more conservative, restrictive approach to public law cases – those are the cases that concern the legality of actions by public bodies – especially when those concern policy.

If so, then there will – in turn – be less need for the current government to ‘reform’ judicial review, the usual means by which the courts deal with public law cases.

If so, this may be significant – at least in its effects.

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The supreme court in the United Kingdom – unlike its American counterpart – does not hear many judicial review cases.

This is not least because there is no codified constitution against which the courts can assess the legality of the actions of state actors.

This in turn means that there is not really a small-c conservative, small-l liberal division in the politics of the supreme court.

Almost all the cases heard by the supreme court do not concern judicial review.

That said, the cases which the court selects to hear and then give emphatic judgments will usually have a powerful effect on the courts below – well beyond the force of any binding legal precedent.

This is a signal that will be understood by – and probably influence – the judges whose day-to-day work involves public law cases and judicial reviews.

It will also be noted by the lawyers who specialise in bringing (or not bringing) certain cases.

In effect: because of the signal from Lord Reed’s supreme court, fewer judicial reviews involving policy will be brought – and of those brought, fewer are likely to succeed.

There will, of course, be hardy lawyers and even judges that will still seek to apply anxious scrutiny to cases involving policy questions.

But those judges and lawyers will soon be in the minority.

And this effect will have a practical impact far greater than could be achieved by bill before parliament.

The days of any expansive approach to dealing with the legality of policies in judicial review cases are coming to an end.

The supreme court seems to be signalling the retreat.

**

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Four hundred years after the civil wars, Parliament is being asked to give power back to the Crown

3rd August 2021

You would think that the grand question of the relationship between the powers of the crown and of parliament had been more-or-less settled over the last 400 years of our history.

The trend has been for the ‘prerogative’ powers of the crown – those powers that have legal effect because the crown is said to have such powers – to be subject to regulation or control by parliament and the courts.

And this is not an unusual thing for a polity that has become more democratic.

Some of these powers have moved to being under parliamentary and judicial supervision or direction at different times – but the tide has generally been in one direction.

But.

As the historian Robert Saunders explains lucidly in this thread, we have a remarkable turn in the tide.

In particular:

The issue, is of course, the repeal of the unliked and unloved Fixed-term Parliaments Act.

This is the 2011 legislation which has never resulted in there being a parliament lasting an entire fixed-term.

Given how easily governments, through parliament, have circumvented the core provision of the legislation, it must be regarded – at least on the face of it – as one of the most singularly useless acts of parliament ever enacted.

(This blog has previously discussed this statute here.)

But.

The principle behind the legislation was – and is – valid and important.

It should be for parliament – and not the executive – to decide when there should be an early general election (that is, an election before the end of a fixed term).

That there have perhaps been frustrations and misadventures with the legislation so far does not mean that the law should be abandoned absolutely – no more than any other prerogative being handed back to the monarch (and by implication the prime minister).

The historical trend away from passing power away from the executive to supervision or control by parliament and the executive has been bucked.

And, fittingly, it is this cavalier (in both senses) government seeking this reversal.

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