Category: Coronavirus – COVID-19

The joy of implicitly

17th January 2022

“Implicitly” is a mischievous word, a Puck of a word.

And those who say and hear such words must be careful, else this Puck of a word can cause unexpected confusion.

It is the word of the moment in British politics.

Last week, the Prime Minister told the House of Commons:

“When I went into that garden just after 6 o’clock on 20 May 2020, to thank groups of staff before going back into my office 25 minutes later to continue working, I believed implicitly that this was a work event, but with hindsight, I should have sent everyone back inside. ”

Now what was the naughty “implicitly” doing in that sentence?

The word must be there for some purpose, as this was something carefully worded that the Prime Minister read out.

Read that sentence again without the word:

“When I went into that garden just after 6 o’clock on 20 May 2020, to thank groups of staff before going back into my office 25 minutes later to continue working, I believed that this was a work event, but with hindsight, I should have sent everyone back inside. ”

This sentence is intelligible – and had he believed it was a work event, that is all that needed to be said.

But someone added the word “implicitly”.

Why?

It is not an especially legalistic word – so, although the sentence was plainly lawyered, it is not there for a specific legal purpose – or at least not one I can identify.

But presumably it is there to change meaning from the plain “I believed” into something else, something more vague and perhaps evasive.

A Westminster/Whitehall insider told me that the use of “implicitly believed” was very much the “don’t ask, don’t tell” of workplace gatherings.

A sort of plausible ambiguity – to let you get away with things that you would know, had you considered it, would not be the case.

In this way it would be a coded synonym for ‘conveniently’.

And the word seems to matter: for it has been repeated by Number 10 and other ministers – and so it is the line to take.

So: the word makes a difference to meaning – and it is a word that matters so much that its use is being forced upon press officers and ministers.

Maybe it means that the Prime Minister cannot show any explicit evidence that he had that view (or expressed that view), and so assumed it.

Here is Adam Wagner, the leading authority on the coronavirus regulations.

Or maybe Johnson is seeking to deftly avoid any legal liability?

Who knows.

But what is certain is that it matters to Johnson – and that he believes in this phraseology, well, implicitly.

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A critical, general overview of the Sue Gray investigation

15th January 2022

This post brings together my posts and tweets relating to the Sue Gray investigation in to the Downing Street parties during lockdown, as well as some new thoughts, into a single general overview.

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There are a couple of preliminary points worth making.

First, investigations like this – and other such forms of ad hoc inquiry – can be signs of an unhealthy polity.

(I argued this in the Financial Times back in 2014 and on this blog last year.)

This is because many inquiries, and most demands for inquiries, are also implicit admissions of State failure.

The admission of failure is that the other permanent elements of the State – primarily the executive, the police, the permanent regulators, the ombudsman system, the legislature, and the judiciary – have all failed in their roles.

If these elements of the State had done their job properly at the time – or been allowed to do their job properly at the time – then there would be less need for ad hoc inquiries after the event.

Every demand that there ‘should be an inquiry’ is also an implicit acceptance that the elements of State with the legitimacy and the purpose to supervise and scrutinise have been deficient.

And as this blog has also averred, often those put at the head of such investigations and inquiries are not sufficiently experienced or well-suited to obtain evidence which those facing scrutiny are unwilling to provide.

(In particular, judges and barristers spend most of their careers looking at documentary evidence which has been helpfully ascertained and compiled by others, rather than ever digging out the raw evidence for themselves.)

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The second preliminary point is that ad hoc inquiries usually suit politicians and others with public power – especially if those inquiries do not have powers to compel evidence which would otherwise not need to be given.

Here it helps to think of the techie phrase Garbage In, Garbage Out (GIGO).

Most inquiries and investigations are only as good as the evidence – documents and testimony and so on – available to them.

If you control the flow of evidence in to the process, you often have significant influence of the ‘findings’ and ‘conclusions’ that come out of the other end.

Garbage In, Garbage Out.

The eye-opener for me on this was when I was a central government lawyer about fifteen-or-so years ago.

I met other central government lawyers who explained how on inquiry work they would work backwards from what they wanted to achieve to the terms of reference of the inquiry so as to ensure they put in the evidence that would tend to the desired outcome.

And the government and others with public power (for example the police) have access to many good specialised lawyers who know how to game the inquiry system like this.

This is not necessarily wrong – it is the job of a lawyer to understand the rules of procedure and of evidence in respect of any process on which they advise.

But it is certainly contrary to the naive view that an inquiry will somehow magically find all the information that will enable it to come to some desired scathing conclusion.

And when the inquiry does not reach a scathing conclusion, the reaction is often that those doing the inquiry have deliberately sought to do a ‘white wash’.

Whilst in reality, the apparent ‘white wash’ is because of what happens with the supply of evidence in the first place.

If you control input the evidence, you will tend to control the output.

Garbage In, Garbage Out.

And that is why any worthwhile inquiry or investigation always needs to be independent of those facing scrutiny and why there needs to be powers to obtain information that those facing scrutiny will not want to provide.

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Now we come to the Sue Gray investigation, the terms of reference of which are published here (I am assuming they have not been amended) – and these terms of reference should be read by everyone following this investigation.

You will see that the investigation was to be conducted by the Cabinet Secretary.

It is not unusual for the Cabinet Secretary (who is the head of the domestic civil service and reports directly to the Prime Minister) to be asked by a Prime Minister to conduct investigations into central government matters.

Within the domestic civil service the Cabinet Secretary has unique authority, although – ultimately – he or she will not be independent of the Prime Minister.

But the Cabinet Secretary is not now conducting this investigation.

This is because the Cabinet Secretary attended a gathering which is part of the investigation.

And so an investigation which sort-of-makes-sense when conducted by the head of the domestic civil service who reports directly to the Prime Minister has been passed to another civil servant who does not (at least not as part of their day job).

Sue Gray has a reputation for being independently minded.

(And note: you should be careful of hoping that this reputation means she will be necessarily critical of ministers – for a genuinely independently minded person will also be independent from the loud clamour of ministerial critics.)

But that a civil servant has a personal reputation for being independently minded does not and cannot make them structurally independent.

She is a senior civil servant – but she is not the most senior, not even within her own department of the Cabinet Office.

And so we have a problem – a type of investigation that was envisaged for the very head of the civil service now being done by a more junior colleague.

And she is investigating her own colleagues some of whom may be at the same level as her and some – like Simon Case – more senior.

The investigation is also into special advisers and others who will be close associates of her ministerial bosses.

There has long been a problem with the non-transparent and closed nature of Cabinet Secretary investigations  – but at least they sort-of-made-sense, but this arrangement must be even more unsatisfactory.

But, as this blog recently contended, the politically charged nature now accorded to this investigation would make inappropriate for any particular civil servant, let alone one who is not the Cabinet Secretary.

It is an investigation that ministers are hiding behind to avoid ministerial accountability to the House of Commons, and her report may topple (or ‘clear’) a sitting Prime Minister.

For all her merits, Sue Gray is not – and should not – be a crucial element of the constitution.

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Now we come to the structural problems of the investigation.

And here, even before we come to this investigation’s Terms of Reference, there are a number of issues:-

Gray cannot make a determination as to whether there is criminal liability, as she is not a court.

Gray cannot make an independent assessment of the application of non-legal guidance to her colleagues as she is not independent – and some of those being investigated are more senior in the civil service than she is.

Gray cannot compel testimony and documents – or even full disclosure – from any of those involved.

And Gray cannot determine whether the prime minister or another minister is in breach of the ministerial code, as she is not the prime minister.

None of these are her fault, and none of these are criticisms of any decisions she has made or not made.

These structural issues instead arise simply from the nature of the investigation she has been charged with.

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And now we come to the Terms of Reference.

If you read these carefully then you will see that there is even less scope for there to be any severe criticism published.

Any finding of apparent misconduct by any particular, named civil servant should not feature – for that will be a Human Resources issue (and that is only right, as there needs to be due process).

Here the reference to “the investigations will establish whether individual disciplinary action is warranted” has to be read with “any specific HR action against individuals will remain confidential”  – and so there may be nothing published of particularised substance on any actual breaches, as they will be part of subsequent internal proceedings.

There is mention of making “reference to adherence to the guidance in place at the time” – but this may not mean a great deal.

The word “reference” here can mean little more than the guidance will be read and perhaps mentioned.

There is no express requirement under the Terms of Reference for Gray to apply the guidance to the facts so as to ascertain whether there has been any breaches.

Gray may do so – and if she is independently minded, she may indeed do so – but there is no requirement for her to do so.

All she is required to do so is to “establish swiftly a general understanding of the nature of the gatherings, including attendance, the setting and the purpose”.

Note the “general”.

She can also refer this matter to the police  – but the threshold for what would trigger such a referral is vague.

And without being able to compel evidence, there may not be information provided to her for her to consider making any such referral.

(It is a remarkable feature of all this is how the Metropolitan Police – who can compel evidence – have fettered their own discretion and contracted out this investigation of a civil servant investigating other civil servants – who cannot compel evidence.)

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There are already problems in practice.

Parts of the investigation seem to have been leaked to the press.

And if it is leaking to the press, then presumably it would also be leaking within the civil service.

These apparent leaks are probably not from Gray and her team but from those affected who are being presented with provisional views or updates for their responses (this would be being done for fairness – even though this is not a judicial or even quasi-judicial process – for there is a general rule that those facing criticism in a report should be able to make representations).

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There are also indications that Gray has not been given full information – which is not surprising given the lack of power to compel evidence and the potentially serious consequences for facing scrutiny.

And it may be that the report keeps on delayed while new parties are uncovered.

https://twitter.com/davidallengreen/status/1481776450244165639

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Recent political history – in both the United Kingdom and the United States – has seen many people looking forward to reports that then turn out (at least at first glance) not to have been as critical as many have hoped, from the Hutton report to the Mueller report.

But what is not surprising is that so many of these reports fail to be robustly critical – what is surprising is that any of these reports ever are robustly critical.

And this is not (always) because of the personal failures of those running the inquiries – but because of the structural problems of the inquiries and the ability of those (especially with competent legal advice) to regulate the flow of information.

Garbage In, Garbage Out.

Perhaps the independently minded Sue Gray will be an exception to this general view.

Perhaps notwithstanding the limits of the Terms of Reference and her inability to compel evidence, the report will match the elevated political expectations now placed on it.

Perhaps it will provide an ironic justification for the politicians who have hidden behind the investigation so as to evade accountability to Parliament – because it will genuinely be a report so substantial and far-reaching that it actually should not have been prejudged.

Perhaps.

Or it may be a report that will allow politicians to brief friendly media that they have been ‘cleared’ – without many realising the inherent limits on the investigation to find anyone in breach of anything.

(It is almost as if this investigation was structured in such a way so as to give scope to ministers to leak to the press that they have been ‘cleared’.)

Most likely is that the investigation will, well, simply comply with the Terms of Reference that have been public all along and so will provide merely “a general understanding”.

This will be a recital of facts “of the nature of the gatherings, including attendance, the setting and the purpose” – with “reference” (but maybe not more) to the relevant guidance.

But with no findings of breaches of the law, no names named, no individual culpability found.

This is an investigation that is almost

Just the (general) facts.

If so, the strange thing would be that anyone expected otherwise.

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Some thoughts about the Sue Gray investigation

14th January 2022

The Sue Gray investigation – the terms of reference are here – is a curious thing.

It is, ultimately, an internal investigation by one civil servant, who reports to ministers, of other civil servants and various advisors and third parties.

It is not a quasi-judicial process and it has no independent standing.

Yet: it has been accorded substantial political force, and it is being used by ministers and others as an excuse not to be properly accountable to parliament.

Even without looking at the the terms of reference, we can know the following: (a) Gray cannot make a determination as to whether there is criminal liability, as she is not a court; (b) Gray cannot make an independent assessment of the application of non-legal guidance to her colleagues as she is not independent; and (c) she cannot determine whether the prime minister or another minister is in breach of the ministerial code, as she is not the prime minister.

None of this is criticism: it just follows from the nature of the investigation.

When one looks at the terms of reference, there are further problems.

There is mention of making “reference to adherence to the guidance in place at the time” which means not a great deal.

The word “reference” can mean little more than the guidance will be read and perhaps mentioned, but it does not mean there will necessarily be an attempt to apply the guidance to the facts as to ascertain whether there has been any breaches.

The reference to “the investigations will establish whether individual disciplinary action is warranted” has to be read with “any specific HR action against individuals will remain confidential”  – and so there may be nothing published of substance on actual breaches, as they will be part of subsequent due process.

The only things to be published are the ‘findings’ and not the report itself.

An investigation could fulfil these terms of reference and end up not telling us a great deal at all other than reciting facts – and with no findings of any breaches of anything.

And although the facts can be telling, they often require people to tell you what they mean.

Think of the Mueller report.

So we could end up with something that ‘clears’ everyone – not because of any deliberate whitewashing, but because the investigation was not required to do anything else.

Perhaps Gray may apply the guidance to the facts so as to make some findings of breaches of the guidance, but the thing is that she does not need to do so to fulfil the terms of reference.

And this is how a lot of these investigations – and inquiries – are bound not to meet elevated public expectations.

Why they are bound to often disappoint.

Not because of any arbitrary decision by those investigating – or enquiring – to ‘whitewash’ – but because of the very structure of the inquiry and the specific terms of reference.

It is almost as if this investigation was structured in such a way so as to give scope to ministers to leak to the press that they have been ‘cleared’.

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Sue Gray should not be a crucial element of the constitution – and nor should any individual civil servant

12th January 2021

There are two conventional ways of looking at the constitution of the United Kingdom.

One is as a list of institutions: the crown, parliament, the courts, and so on.

Another is as a list of functions: the executive, the legislature, the judiciary (which corresponds generally, but not exactly) with list of institutions.

The general approach of this blog (and my commentary elsewhere) is slightly different: to see the constitution as the means by which certain basic conflicts about power are recognised and reconciled.

But whichever approach you have to understanding the constitution of the United Kingdom, one thing will always be the same.

An individual civil servant should not be a crucial element of the constitution – regardless of who that civil servant is.

A civil servant is (usually) a servant of the crown (taking the institutional approach), a part of the executive under ministerial direction (the functional approach), or has no special competence or legitimacy in resolving a contested political problem (the conflicts-based approach).

Sue Gray, the civil servant tasked with resolving the Downing Street party problem is, by informed accounts, an outstanding civil servant.

And if this was a mere exercise in fact-finding, this task may not be a problem.

But her investigation has become something more.

Sue Gray’s investigation has become a vehicle by which ministers – even at the despatch box – are evading their duty to answer urgent parliamentary questions.

Her investigation is the excuse given by our prime minister for not saying even whether he was present at a party (or parties).

But Sue Gray is not a judge determining a matter in the courts, or an appointed head of a statutory inquiry.

Her investigation is not – and should not – be a reason for the prime minister or other ministers to escape straightforward accountability.

Sue Gray should not be a crucial element of the constitution – deciding, in effect, the fate of a Prime Minister and while doing so preventing ministerial accountability to parliament and the public.

No civil servant – even the cabinet secretary, let alone a more junior figure like Sue Gray – should be placed in this position again.

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The problem indicated by Johnson and his garden party is greater than just Johnson and his garden party

11th January 2021

Individuals were arrested, prosecuted and convicted for doing just what the Prime Minister and his circle did at his garden party.

Individuals made unimaginable sacrifices not to see loved ones at critical moments because they did not do what the Prime Minister and his circle did at his garden party.

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And last week, government supporters insisted that the Colston Four clearly broke the law and should be punished, regardless of what any jury said.

But this week, government supporters say that things are not clear and so we really should wait for Sue Gray’s report to tell us if there was any wrongdoing with is garden party.

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These tensions – contradictions – cannot hold in any sensible polity.

https://twitter.com/colinelves/status/1480816542816292865

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Or, at least these things should not hold in any polity.

The concern must be, in this horrid period of hyper-partisanship that such utter inconsistencies are not only permissible, but routine.

That like some say of Covid – one now has to get used to living with this anti-politics.

The only hope for sensible politics is that the Prime Minister will be undone by his hubris and is not replaced by another hyper-partisan leader.

Otherwise there is no point replacing one Johnson with another proto-Johnson, for the same problems will continue.

For the real problem is not so much Johnson –  but the political context that enabled him to become Prime Minister and keeps him as Prime Minister, notwithstanding the obvious faults and dishonesty.

And until and unless that permissive context is addressed, then we may just end up with more of the same.

There is something rotten in our polity – and Johnson is as much an effect of that as a cause.

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The myth of “Not Now” – why a crisis is a good time to change Prime Minister

20th December 2021

One of the defences used to defend against getting rid of the current Prime Minister is that it should not be done in the midst of a crisis.

This view is misconceived.

In 1916, in midst of the Great War, Asquith was replaced with Lloyd George.

In 1940, when things seemed at their worst, Chamberlain was replaced by Churchill.

In both cases, of course, this was because there was an alternative candidate who had the support of opposition members of parliament.

But it has also happened in other situations.

In 1990, during the build up to the Gulf war, Thatcher was replaced by Major – and by the governing party’s own members of parliament, not the opposition.

And indeed, it need not only be an intra-parliamentary affair.

In 1945, when there was no reason to believe the war with Japan would soon end, the British electorate replaced Churchill with Attlee.

And if you go further back, there are many half-forgotten prime ministers who were replaced at times of uncertainty or peril.

So, in historical context, the unusual thing is to retain a prime minister in a crisis rather than not to do so.

This is one of the features – some would say merits – of the flexible nature of the constitution of the United Kingdom (and of Great Britain before 1801).

A Prime Minister can be dumped quickly.

Of course: things are different now.

Any new leader of a political party has to go through a process of being elected (or, if unopposed, approved) by party members.

And there is no real prospect – as with Lloyd George or Churchill – of a politician currently becoming Prime Minister without also being the leader of their party.

So the reason why we cannot just get rid of the current Prime Minister, notwithstanding his inability to do the job, has more to do with the mechanics of party organisation (and, no doubt the leadership ambitions of others) than constitutional practice or historical precedent.

And that is a pity – as both constitutional practice and historical precedent point to a period of uncertainty or of peril as being the best time to get rid of a Prime Minister who is not up to the job.

Indeed, the singular lack of credibility of the current prime Minister in respect of public health and abiding by the rules means that it is imperative that he is replaced with someone who can be taken seriously in imposing public health restrictions.

Instead of ‘not now’ it should be ‘now, of course, now – for when else?’.

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Why judges may not be the best people to chair public inquiries

16th December 2021

Yesterday it was announced that the forthcoming Covid public inquiry will be chaired by Heather Hallett, the former appeals judge with an outstanding reputation as a lawyer.

Nothing in this post should be take to gainsay that appointment.

Instead, this post examines the general question of whether judges – or barristers – are really the best people to chair public inquiries.

In the United Kingdom judges are not usually investigators.

Instead the facts and documentary evidence on which they are to decide cases are put together by the parties to the case and their lawyers.

A judge will – despite spirited fictional depictions – not go and find out new facts and evidence for themselves.

In turn: most (though not all) judges are also barristers.

Many barristers also do not go and find out new facts and evidence in the case on which they are instructed: the facts and documentary evidence are provided to them usually by instructing solicitors or other professionals.

In essence: for all their many undisputed skills and talents, little in the background of judges and barristers fit them to be investigators.

Any investigations are normally conducted by others.

Once the evidence has been put together, judges and barristers will then often be very good at assessing and weighing that evidence, and in applying that evidence to the law (and applying the law to that evidence).

But the uncovering of the primary facts is normally done by others.

This is why – especially in civil cases – it is those who have the best controls over the flow of evidence that will tend to control the verdict.

And this is also why many public inquires are (or seem) to be ‘whitewashes’.

This is not (usually) because the head of the inquiry deliberately wants there to be a ‘whitewash’.

The ‘whitewash’ is often further upstream – in how the evidence is presented to the inquiry.

As techies say: garbage in, garbage out.

I know this, in part, because I used to work with public inquiry lawyers when I was a central government lawyer.

They worked backwards from the outcome they wanted to achieve so as to marshal the appropriate evidence.

That was their job.

So what is needed in the head of any inquiry is to have someone who is not reliant on the nicely packaged evidence and facts as put together by skilled and experienced public inquiry lawyers.

But to have someone with the skills and experience to get to the facts and evidence that powerful parties may not want to have put before an inquiry.

A person who will use the statutory powers available to public inquiries for compelling evidence, so as to balance the experienced public inquiry lawyers doing whatever they can to avoid putting certain evidence in.

Sometimes this person may be a judge, but sometimes it may not be.

But there is nothing particular in the background of most judges and barristers that equips them for investigating things.

Garbage in, garbage out.

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Boosterism about boosters

13th December 2021

At least we have something new in law and policy to talk about.

No doubt as an attempt to protect his personal political position, our current Prime Minister made a rare broadcast last night to announce an ambitious new ‘target’ for take-up of the vaccine booster.

Of course, there had been no consultation with health service providers, still less any preparation.

And this is not a surprise, for our Prime Minister is interested in public policy only when it helps him with his political career.

It is hard, if not impossible, to think of any sincere view on public policy that the Prime Minister holds.

Public policy simply provides Boris Johnson with the means for obtaining and retaining political power – be it Brexit or Covid.

Whatever policy position he can adopt so as to get through the political predicament of the day (or hour).

And so – inevitably – we end up with boosterism about boosters.

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The Parable of the Prime Minister’s Curtains and the Mysterious Black Bin Bag

12th December 2021

From time to time, if you are lucky and alert, you can watch urban legends form in real time before your eyes.

In the last twenty-four hours we have seen the creation of a new conspiracy theory, to go with the likes of the moon landing hoax and Piltdown man.

It began with a tweet and a picture:

It is a good, good scoop.

The picture, of course, is not in and of itself incriminating.

Three people, including the Prime Minister, on a Zoom or similar call.

The Santa hat and the tinsel are indicative of it perhaps not being an especially earnest work call.

It is unlikely, for example, that the other call participant was, say, Vladimir Putin.

But it is the context which makes the picture significant.

If the three participants were not together for work purposes at the time of last Christmas then it would seem to have been an unlawful gathering.

And if, instead of Vladimir Putin’s stern unsmiling face, the Prime Minister was looking at a screen full of quiz participants – his own staff – crowded around their monitors, then his staff would seem to be in unlawful gatherings too.

When the Prime Minister said ‘all the rules have been followed’ he did not mention they were the quiz rules.

If these contextual points can be made out then this could be a difficult situation for the Prime Minister and his staff.

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You would think this was bad enough – and sufficient to satisfy those who are hostile to the Prime Minister and distrustful of him.

But no.

The picture also, it was contended, showed something even worse, if you looked carefully.

Looked hard, like one would look at a slice of toast to maybe see a somewhat bewildered face of Jesus.

In the top-left corner, we were told, there is black bin liner.

And if there is a black bin liner, it followed, it would have to be masking a security camera.

But.

There is no black bin liner.

And under the lack of a black bin liner there is no security camera.

What you can see is a pelmet – in effect upholstery for curtains.

You can see this in these pics:

This, of course, did not prevent a number of usually sensible people from tweeting about a black bin liner hiding a security camera – members of parliament, journalists, critical thinkers.

As well as all those who, well, would also tweet without any hesitation in other situations about ‘dead cats’ and ‘false flags’.

What all this tells us is a couple of things,

The first is the truth that many people will want to see a deeper conspiracy when no conspiracy needs to be posited.

The second is that we have a Prime Minister for whom many will believe it is plausible is capable of adopting the tactic of putting a black bin liner over a Downing Street security camera.

The number of people ready to believe this of our current Prime Minister is in and of itself significant.

(Indeed, some reading this blog post would be ready to believe if there were more compelling evidence.)

But as this blog averred recently, we have an arrogant government that has not even got the basic competence to be deceitful and cunning.

Even if there were a security camera in Downing Street instead of a pelmet, Johnson would probably not have cared anyway.

This is because he would (then) have undoubtedly not even thought that it could possibly matter – at least to him.

So what?

Well.

And now we come to the real political significance of the picture.

For what is important for what happens next to the Prime Minister is how freely this information is now being given to the press by his own staff.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

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