Category: Inquiries and Investigations

Why it will really matter when the Prime Minister realised he had misled the House of Commons – even if his four misleading statements were in good faith

22nd April 2022

As the cliché of American political reporting has it: what did the president know, and when did he know it?

Applying this same sort of question to current British politics, it may not be important so much that the prime minister (says he) did not realise he had misled the house of commons on four occasions, but about when he realised he had done so.

Here we need to look at this Twitter thread by the estimable Alexander Horne:

It will be impossible for any sensible person to believe that the prime minister did not realise at the time he misled the commons that he was lying.

Of course he did.

But – let’s pretend that the prime minister inadvertently misled the house of commons and that he believed in the truth of what he was saying.

Let’s pretend.

At some point between then and this week, he would have come to the realisation that he had misled the house of commons.

That might be when he had subsequent advice and briefings in respect of his evidence to the Sue Gray investigation.

It might have been when he had sight of the Sue Gray report.

It might have been when he had subsequent advice and briefings in respect of his evidence to the metropolitan police investigation.

But it is unlikely that the first time he realised was when he received his (first) fixed penalty notice.

Now, let us turn to a curious form of words used by the prime minister last Tuesday in his statement to the house of commons (emphasis added):

“Let me also say—not by way of mitigation or excuse, but purely because it explains my previous words in this House—that it did not occur to me, then or subsequently, that a gathering in the Cabinet Room just before a vital meeting on covid strategy could amount to a breach of the rules.”

At the time, that the two words “or subsequently” struck me as odd and in need of explanation.

The words did not seem like mere surplusage.

And now, given Horne’s highly useful and informed thread, the meaning of those two words are apparent.

For it is one thing for the prime minister to claim that he did not realise at the time of his four statements that he was misleading the house of commons.

But it is quite another for him to also maintain that he corrected “any inadvertent error at the earliest opportunity”.

At some point between the four misleading statements to the house of commons and last week’s statement, the prime minister became aware that those four statements were not true.

(Of course, he knew at the time he misled the house, but let us continue pretending for the sake of exposition and analysis.)

And if and when the Sue Gray report is published (and/or the briefing given to the prime minister for the metropolitan police inquiry is disclosed) it may become plain that the prime minister did not correct “any inadvertent error at the earliest opportunity”.

Those two words “or subsequently” are going to be doing a lot of work.

For, if it can be shown that even if the prime minister did in good faith mislead the house of commons on each of those four occasions, he also needs to satisfy the privileges committee that he corrected “any inadvertent error at the earliest opportunity”.

And it may be that the Sue Gray report – or other information – may show that is just not true.

Given the powers of the privileges committee, that will not be a comfortable position for the prime minister.

He should brace, brace.

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Partygate and parliament: law and policy, tactics and strategy, privileges and penalties

21st April 2022

Well.

Those were an interesting few days in parliament.

We went from a government bullishly seeking to block the prime minister being investigated by the powerful committee on privileges, to supporting the opposition motion.

This government cannot even get political gangsterism right.

Great credit here should go to the opposition parties.

Faced with a law-breaking prime minister who has said – on any view – incorrect things to parliament about the facts relevant to that law-breaking, the opposition could have gone for censure motion, or a confidence motion, or a contempt motion.

And had the opposition done so, it would have been defeated – perhaps on a whipped vote.

But instead the Labour leadership put forward a motion to which no sensible member of parliament could object, and the motion even said any consideration by the privileges committee should await the end of the Metropolitan police investigation.

And the Labour chair of the privileges committee – who had been vocal in his disdain of the prime minister on this issue – said he would recuse himself, thereby removing another possible objection.

Against this tactical savviness, the government position collapsed.

First there was to be an amendment: but that went.

Then the vote was to be unwhipped: and that went.

And in the end, there was not even a vote.

The motion went through on the nod.

Let’s just think about that.

A motion of the house of commons that a sitting prime minister should be investigated by the privileges committee in respect of four statements he made in the house about the circumstances of that law breaking went through – and not a single member of parliament opposed it.

Of course: asking for an investigation is one thing – and the committee may well not find the prime minister in contempt.

But – in and of itself – that such a motion should go through without any objection is remarkable.

One reason for the opposition’s tactical success is that Conservative members of parliament do not want another situation like with Owen Paterson – where they were whipped to frustrate a report, only for the position to be reversed in front of their eyes.

Another reason is that – as this blog has previously averred – a parliamentary majority is no barrier to Nemesis following Hubris.

Other prime ministers in command of working majorities have been brought down before between elections – Thatcher, Blair – and so there is no reason this one cannot be either.

A privileges committee investigation is a serious matter, as they have the power to recommend suspensions from the house.

Another investigation – following the Sue Gray and metropolitan investigations – will also keep this issue alive – and that is, no doubt, the strategic goal of the opposition.

The constitutional Wednesday Addams in any of us can only smile at all of this not going away.

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What is happening here is – in effect – a parliamentary stress-test, an anxious examination of our constitutional arrangements.

What do you do with a law-breaking prime minister who has misled the house of commons?

Can this be checked and balanced?

The answer to this should not be a civil servant’s report – however independently minded the civil servant.

Nor should it be a decision by the police to issue a penalty, or not.

It is – rightly – a matter for parliament.

And this week’s deft parliamentary footwork by Labour and the other opposition parties has ensured that there will be a parliamentary answer to this particular parliamentary question.

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The misconceived politics of “Law and Order!” and “Red Tape!”

14th April 2022

On theme of this blog is the relationship between political discourse and underlying law and policy.

For example, the difference between “Law and Order!” as a slogan, complete with capital letters and an exclamation mark, and – well – law and order.

A contrast, of course, which is very telling this week as the leader of the party of “Law and Order!” conceded he had broken the criminal law on government property, and only one minister resigned.

Law and order is for other people.

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Other phrases – again complete with capital letters and exclamation marks, are “Health and Safety!” and “Red Tape!”.

And here too the political vocabulary plays strange things with reality.

Over at the Guardian, there is a fascinating and informative article by the deputy news editor of Inside Housing on the Grenfell inquiry, Lucie Heath.

Heath says:

“the inquiry has consistently painted a damning picture of the deregulation drive that was a key focus during Cameron’s time as prime minister.

“The obsession with abolishing red tape saw ministers at that time ignoring warning signs about a growing building safety crisis, and civil servants too disaffected to speak up.”

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Rarely a month goes by without some minister getting easy applause for saying that we should get rid of “Red Tape!”

Dynamic words are often used, such as “unleash” or “unshackle”.

But such words are not an articulation of a policy, but a substitute for one.

And usually those who speak generally about cutting “Red Tape!” are unable to provide particularised examples.

Of course, some rules and regulations need to be revisited – especially those that have been put in place because of that other political phrase “Something Must Be Done!” – but this should be conducted on a case-by-case basis.

Regulations – in and of themselves – are neither inherently bad nor inherently good.

And getting rid of regulations – or not taking regulations seriously – for the sake of it is just as misconceived as putting in regulations for the sake of it.

Sometimes – as is being uncovered by this inquiry – what seems like mere “Red Tape!” can be very important indeed.

And so just as we would have better politics if politicians and the media did not confuse “Law and Order!” with law and order, we would also benefit if we did not clap and cheer on attacks on “Red Tape!” but looked at each case to see if regulations were needed or not.

If so, we would be “unleashing” or “unshackling” sensible political discourse.

And wouldn’t that be a thing?

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Did you know that there is a Parliamentary Ombudsman?

 

6th February 2022

Did you know that the United Kingdom had an ‘Ombudsman’?

And if you did know, did you know what this Ombudsman can and cannot do?

I have been looking into this strange office for a while now, at the invitation of campaigners.

And the more I look at this curious office, the more confused I become.

This is because it sits very oddly within our domestic legal and administrative system – and is, in effect, a 1960s transplant from another constitutional regime.

The system is almost guaranteed to not fully satisfy anyone who uses it – and, indeed, there seems to be a number of people who are very unhappy with it.

This post is an introduction to the legal basis of the Ombudsman system – and I intend to further posts look at particular problems.

This is because it offers a fascinating case practical study of transparency and accountability (and the lack thereof) in law and policy.

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The notion of an Ombudsman comes from Sweden, and it was a popular and fashionable notion for administrative reformers after the second world war.

The idea was that the Ombudsman would help promote good government by investigating and thereby checking ‘maladministration’ – which is itself a problematic concept from a lawyer’s perspective.

(Is maladministration an unlawful ultra vires act? Or are there acts that are lawful but also maladministration? Who knows.)

By the 1960s – when administrative law in England and Wales was still underdeveloped – having an Ombudsman seemed like an idea that had come.

And so we had one – and then a number.

The primary Ombudsman in the United Kingdom, is the Parliamentary Commissioner for Administration.

This office was established by a 1967 Act of Parliament.

The remit of the Ombudsman is that it can, on referral by a Member of Parliament, “investigate…[an] action taken in the exercise of administrative functions…where…a member of the public…claims to have sustained injustice in consequence of maladministration”.

In some ways, it is a powerful office.

Very powerful.

The Ombudsman can only dismissed by an address of both houses of parliament.

The Ombudsman can require ministers and government departments to provide information and documents – even ‘secret’ information and documents.

It is even a criminal offence to obstruct the Ombudsman.

And the Ombudsman can, after an investigation, place a critical report before parliament that has full legal privilege.

With these legal superpowers, the Ombudsman would be a legal superhero equivalent of any other something-man or -woman.

Such a figure, given these powers, could be expected to be central to discussions about law and policy in central government.

But.

To go back to the top of the post: did you even know that the United Kingdom had an Ombudsman?

Have you ever read an Ombudsman report – or even visited its website?

And here there is a paradox – if not a contradiction.

For, at a time where there seems more and more maladministration, the Ombudsman has almost no public profile.

On the assumption that there is maladministration in central government, and given the legal super-powers of the Ombudsman, why is the Ombudsman so little-known?

And is there a problem with the Ombudsman system, as critical campaigners aver?

Let’s find out in future posts – and your informed comments are welcome below.

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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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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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