Political accountability vs policy accountability: how our system of politics and government is geared to avoid or evade accountability for policy

24 September 2024

Over at Bluesky, the German writer and historian Helene von Bismarck, an acute observer of British politics, posted this interesting question:

“One question I have been asking myself for many years about UK politics: Why does it – regardless of who is in government – appear to be this hard to solve problems & get things done? Schools, the NHS, defence procurement, etc. Lack of money, you (probably) say. But surely this isn’t all of it?”

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One answer, of course, is that there is a lack of accountability.

On the face of it, however, there is a great deal. of accountability in the politics of the United Kingdom.

There are general elections, where the government of the day can fail to obtain a majority – as in 1997, 2010, 2017 and 2024 – as well as by-elections and regional and local elections which often (are said to) give governments a ‘bloody nose’ (or something).

And between general elections, Prime Ministers can come and go – as in 1990, 2007, 2016, 2019, and 2022 (twice).

And then, at the levels below Prime Minister, ministers come and go, often with undue frequency.

We also have the theatres of Prime Ministers Questions and the various political shows on television and the radio (and increasingly with podcasts), and we have a well-connected and ambitious lobby of Westminster journalists.

And so, superficially at least, we have a near-constant buzz of accountability – almost all day, every day.

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But.

If the word “accountability” is taken to mean (as it should be) that the accountable person can be required to give an account of what they are doing, then things look rather different.

For in the United Kingdom we have a great deal of political accountability, we have far less policy accountability.

And by policy, it is meant the formulation, implementation and administration of things by government.

The theatres of political debate and discussion do not often go to the substance of policy – and often policy only seems relevant to the extent that it offers a ready “gotcha” against a hapless or hopeless minister.

The lobby system of journalism – and there are some outstanding lobby journalists – necessarily requires a focus on the politics of Westminster, rather than on what is happening in Whitehall – and still less on what is happening outside SW1.

The doctrine of individual ministerial accountability provides a mutually beneficial pact where a minister can (plausibly) say that they were not aware of something while officials escape routine accountability for what they do.

Parliamentary questions are easily evaded either in written or oral form, with no sanction for tardiness or non-compliance.

And as for Freedom of Information, the departmental section 17 letters refusing disclosure are perhaps the most dismal and insincere – if not outright dishonest – official documents in the history of our domestic bureaucracy.

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One illustration of how weak policy accountability is in the United Kingdom are the now (all too frequent) public inquiries.

These inquiries – sometimes long after the events being investigated – often do little more than what could have been done at the time, if the organs of the state had had the necessary powers and the requisite will.

To take one glaring example: the Covid inquiry is forcing politicians and officials to give an account – ie provide accountability – about everyday decision- and policy-making during the pandemic.

This should have been done in and by parliament at the time.

Many revelations that come out of that and other inquiries is an indication of the weakness of our traditional forms of accountability.

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Why is all this so?

Part of the reason is legal(istic) – inquiries have formal legal powers which are not generally available to (say) parliamentary committees and still less available to journalists.

But the main reason is there is no real incentive for government and parliament and officials and the media to have it any other way: no careers will be benefited, there is no electoral advantage, there are no extra viewers or listeners, and there no more newspapers sold (or fewer copies left unsold).

And the primary reason for this lack of incentive is, well, us.

If voters (and viewers and readers) wanted more real-time policy accountability then there would be career, commercial and/or electoral advantages in there being more policy accountability.

But that would mean us taking policy seriously, which is dull and complicated.

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There are, however, grounds for some optimism.

Parliamentary select committees – especially in their online manifestations – are becoming increasingly impressive in what evidence is made publicly available in their ongoing inquiries.

The House of Commons library also make their outstanding briefings available to the public as well as to parliamentarians.

The decline in specialist journalists is – though only to a limited extent – being offset by specialist commentators – on Substack or elsewhere.

But, even taking all these positive points at their highest, there is generally little or no incentive for there to be real accountability, as opposed to superficial (and theatrical) accountability.

And so the massive policy problems identified by von Bismarck in her post do not have ready solutions – though, no doubt, there will one day be a scathing public inquiry about each of them.

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The task before James Timpson: the significance of this welcome appointment – and two of the obstacles that he needs to overcome

8th July 2024

The appointment of James Timpson as prisons minister is welcome – indeed it is the most welcome appointment to this position that any sensible person can imagine.

But there are a couple of serious obstacles that he will need to overcome.

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Before those two obstacles are described, however, let us remind ourselves of the Tale of Two Timpsons, for it perhaps tells us something significant about what is now our governing party.

When Edward Timpson – the younger brother of James – was selected as a candidate by the Connservative Party in 2008, this was the infantile response of the Labour Party:

Edward Timpson himself referred to this dreadful, crass campaign in an interview in May this year when he announced he was standing down from parliament:

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So one thing the appointment this week maybe signifies is that the now governing party is rather more politically mature.

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And the appointment also signifies a more mature approach to prisons policy.

(We can only hope that one day there is a similarly mature appointment in respect of drugs policy.)

James Timpson has an outstanding record in respect of rehabilitation of offenders, both at his Timpson business and otherwise.

He is, for example, chair of the Prison Reform Trust:

A post he wrote on appointment is worth reading here.

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“We’re addicted to sentencing, we’re addicted to punishment,” he has said more recently.

“So many of the people in prison in my view shouldn’t be there. A lot should but a lot shouldn’t, and they’re there for far too long.”

This is therefore a sensible and enlightened appointment which deserves hearty applause.

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But.

Timpson has (at least) two obstacles in his new position – and it cannot be certain that he can overcome them.

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The first obstacle is that the track record of business people appointed as ministers indicates that they tend not to be successful as politicians.

There was John Davies under then Prime Minister Edward Heath, and he was not a conspicuous success.

There was David Young under then Prime Minister Margaret Thatcher who, despite been adept at telling her what she wanted to hear (“Other people bring me problems; David brings me solutions,” she is quoted as saying), was otherwise not a conspicuous success.

There was Archie Norman under then Leader of the Opposition William Hague, and he was not a conspicuous success (“I was the first FTSE-100 chairman to sit in the House of Commons and I will almost certainly be the last,” he said afterwards).

And there was Digby Jones under then Prime Minister Gordon Brown, who was also not a conspicuous success.

One reason for none of these business people being successful as politicians is that being good at business does not automatically mean that one will be good at politics.

Being good at politics requires specific skills – and there is no particular reason why a business person will have those skills.

That said, James Timpson is more than just a good businessman, he is a committed and knowledgable prison reformer – and this may make the difference where other business people have failed as front bench politicians.

But the reason this really matters in this instance is because of the second obstacle.

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The second obstacle to James Timpson being successful as prisons minister is the structurally and politically weak position of being a mere minister of state in the Ministry of Justice – both against the Treasury and in respect of the news media.

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Since 2005 prisons have been under the Ministry of Justice, having been moved over from the Home Office.

To an extent this was a good thing, for the less power the Home Office has over anything, the better.

But it was also a bad thing, for the it turned the Ministry of Justice from what was the old Lord Chancellor’s Department into a “spending” department.

And not only a spending department, but a small spending department – the worst of both possible worlds.

Part of the problem the Ministry of Justice has had since 2005 – under all administrations – is its weak position vis-a-vis the Treasury.

At least the Home Office had some departmental heft and a senior cabinet presence in its battles for public money; the Ministry of Justice almost has none.

And Timpson will not even be head of this department – the Lord Chancellor and Secretary of State for Justice is Shabana Mahmood (another welcome appointment).

Mahmood in turn will be fighting for money for the courts system and legal aid, as well as for probation and prisons. This puts Timpson further back in the queue for public money – to the extent any changes he wants to bring about requires investment.

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And it will not only be the Treasury that will be need to be won over.

The right-of-centre news media is still wedded to the notion that prison works. They are, to use a phrase, “addicted to sentencing…addicted to punishment”.

It will take only one unfortunate incident of something done by an early released prisoner, and there will be a news-media fire storm.

Such a prospect would be daunting for even a seasoned politician saying prison works.

Those with long memories will recall how prisons failures engulfed David Waddington, one of the biggest hangers-and-floggers ever to be Home Secretary:

When prisons and probation things go wrong they are easy copy for time-poor news media. The screaming headlines will write themselves.

It is one thing to have warm applause and general goodwill on appointment, it is another thing when there is a horrific story on the front pages.

Being a prisons minister who believes in prisons working is hard enough.

Being a prisons minister who wants to achieve fundamental yet enlightened change is far harder.

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So the task now before James Timpson is immense: to quickly become an effective Whitehall and Westminster politician so as to bring about a change in policy direction, in the faces of both a parsimonious Treasury and potential outright news-media hostility.

He has to bring about fundamental change to Whitehall’s long-settled prisons policy – one of the most difficult ‘asks’ in politics.

Yes, it is a brilliant, heartening appointment.

And if anyone can do it, James Timpson can. But it will not be easy.

One can only wish him good fortune.

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Seven changes for a better constitution? Some interesting proposals from some good people.

24th June 2024

In the Times today there is a letter published from various good sorts putting forward seven practical and easy-to-make steps for a better constitution.

One of the signatories, David Anderson, helpfully posted the letter on Twitter:

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Of course, changes to form and structure can only take us so far. The biggest problem of recent years has been an underlying lack of constitutionalism from government ministers (cheered and clapped by their political supporters). And until attitudes change, then rules will always be gamed or ignored and discretions abused.

But, there has to be a start somewhere to repair the damage, and these are interesting proposals.

The suggestions appear to be:

  • independent enforcement of a new ministerial code;

  • establishing new systems for managing conflicts of interest;
  • ditto, for lobbying;
  • improving regulation of post-government employment;
  • ensuring appointments to the Lords are only made on merit;
  • ensuring other public appointments are rigorous and transparent; and
  • strengthening the independence of the honours system, including by ending prime ministerial patronage.

The worthies aver that legislation is not necessary for most of these changes but a short bill would create the necessary powers and embed the independence of the ethics and integrity system.

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Some may say that these proposals are a little “apple pie” – but they would be a move in the right direction, the least that can be done.

Words like “ensuring” and “strengthening” are easy to type – and they are almost as easy to put at the start of a sterling bullet point.

But what is the actual check on misuse? Who in practice will have the power and authority to say “No” to a trespass by a minister of the crown (or by a former minister of the crown)?

The robustness of any regulatory system is not so much in the rules being themselves commendable, but in the rigorous enforcement of those rules and in the ready and realistic availability of sanctions for breach.

In a word: there needs to be tension.

And in our constitutional arrangements, as they stand, only parliament and the courts – rather than third party agencies – have the strength and the legitimacy to check the executive on an ongoing basis, and so for each of these seven laudable aims, one question is how they can be enforced against the government’s will by other strong and permanent elements of the state.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Another inquiry report, another massive public policy failure revealed

There are so many governmental scandals that it is difficult to keep up with them all, and one horrific scandal this blog has not before covered is about contaminated blood.

This week this inquiry report was published, and even a cursory view of its conclusions is evocative of the public policy failures that have been covered here.

 

There are two points in particular which will stand out for followers of this blog.

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The first point is that it appears that officials did not tell ministers everything. You may recall that this was also the problem with the Post Office horizon scandal. You may also recall that the Afghan war crimes inquiry has also revealed that officials were not forthcoming – and even obstructive – even when there was a determined minister seeking explanations.

It is this disconnect – if not breakdown – between ministers and departments that undermines and indeed discredits the old doctrine of individual ministerial responsibility (which I also wrote about at Prospect).

A minister cannot be meaningfully responsible to parliament (and thereby to the media and the public) if they themselves are given duff and misleading information. As the techies among you will know: GIGO – or garbage in, garbage out.

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And this leads to the second point: this inquiry is yet another example of an exercise in accountability that should and could have been undertaken by parliament and in real-time. (My Prospect piece on this is here.)

Instead, and long after many of the key events, it has been left to an inquiry to show what happened at the material times – and what went wrong at the material times.

As such, this is another example of failure by our parliamentary system to provide proper, real-time scrutiny.

Parliament is simply not well-equipped to force information and materials out of an unwilling government. Parliamentary questions are easily batted back; select committees have few real powers to prise out documents.

And our media is also not well-equipped. Press offices are unhelpful when the queries are unwanted; freedom of information in the United Kingdom has no real teeth. A great deal of press scrutiny – perhaps too much – is dependent on briefings: information is disclosed only when it suits someone in government.

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How many more inquiries – with damning detail and revelatory narratives – are we to have before we realise that it is parliament that needs significantly strengthening?

Parliamentarians should have access to coercive powers to compel evidence from ministers and officials which are no less powerful than those available to public inquiries.

And parliamentary questions as a norm should be addressed to and answered by the actual officials responsible, rather than the evasive and convenient fiction that ministers are responsible for entire departments.

But all this would require taking parliament seriously.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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A close look at the Donelan libel settlement: how did a minister make her department feel exposed to expensive legal liability?

8th March 2024

Yesterday over at Prospect I did a post on the curious situation of the Michelle Donelan libel settlement. Please click and read the post here.

Here I want to set out some further thoughts on what is, in one way, a remarkable law and policy news story – and what was, in another way, an accident waiting to happen given the practices now common in politics and media.

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This is her statement:

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Donelan is a Secretary of State and a Member of Parliament – and, as such, she can say and publish whatever she wants in a libel-safe way, as long as she goes about it sensibly and in the right way. The law of the United Kingdom is configured so as to allow ministers and parliamentarians an “absolute privilege” for what they say in parliament. The law is further configured so that in official correspondence, defamatory things can be freely stated (with “qualified privilege”) as long as the recipient has an interest in receiving the information, and it is said in good faith and without malice.

This configuration can be seen as unfair and one-sided – especially as, with qualified privilege, the onus is on the complainant to provide there was malice and bad faith. But this is how, in this context, the overall balance between free expression and reputation rights has been set in the public interest.

All this means that if Donelan, or any other minister, had genuine concerns about the appointments to a board of an agency which their department supervised, those concerns can be expressed and received, and it would be hard-to-impossible for any person mentioned to actually bring a claim in libel.

And so it is pretty remarkable for a minister to (purport to) do this and end up facing personal liability for libel – and to also expose their department to liability for libel.

Something wrong happened, and it needs explanaing.

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What converted this into a situation where the minister and her department became exposed to legal liability was the decision by the minister to tweet a copy of the letter stating these concerns about specific individuals.

At a stroke (of the keypad) the qualified privilege that would otherwise have protected that communication was lost. The thousands of people to whom the letter was now published had no proper interest in the contents.

And as the key accusations had not been investigated with any duly diligent checks, the publication of the letter on Twitter also could not be said to be in the public interest, which meant that an alternative defence to libel was also not available.

So not only was it a very strange thing for the minister to do, it was legally reckless.

Since the Prospect piece was written and published, it has been reported in the news that the minister had had advice before the letter was tweeted.

If this is correct, and the advice was legal advice (and not, say, a non-legal adviser nodding along), then either:

(a) the minister went against that legal advice; or

(b) the minister was given the wrong legal advice.

If the latter, then the decision to publish the letter on Twitter does not become any the less strange as an act, but the minister can at least say that she was not properly warned of the legal consequences. (And the latter is perhaps possible if the government lawyer concerned was not a media law specialist, though the law here is pretty straightforward and basic.)

But, in any case, no competent lawyer with a knowledge of media law could have advised that publishing the letter on Twitter would be covered by qualified (or absolute) privilege.

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From looking closely at information in the public domain, it would appear that the lawyers for the complainant (and she will not be named in this post, as she has suffered enough) sent a letter before claim to Donelan in her personal capacity.

(This can be inferred because the letter complained of was tweeted from her personal Twitter account, and the retraction was also tweeted from her personal account – hence the legal threat was made against her personally.)

But.

It would seem that the government immediately took the claim as meaning the department would be on the line, and so the government legal service acted for Donelan and not any private law firm.

(This can be inferred from the government statement “This [settlement] was subject to all the usual cross-government processes and aims to reduce the overall costs to the taxpayer that could result from protracted legal action.”  The reasoning for this inference is in the Prospect piece.)

Normally the government would not need to do this.

Indeed, given the rules on public expenditure, the government should not have done this – unless the government believed itself to be exposed to potential liability.

But something about how the claim was framed put the frighteners on the government, and the government legal service jumped in.

Yesterday in Prospect I averred there were two possible reasons for the government dealing with the claim, but recent news reports now suggest a third.

The first is that the government saw the tweet as being connected to her role as Secretary of State – it was part of her departmental work and, although the tweet was from her personal Twitter account, it should be treated as an official communication.

The second is that although the tweet was in her personal capacity, the litigation would drag in the department in a costly and time-consuming way, and this litigation could also develop so as to expose the department to direct legal liability about the letter to the agency. In particular, the department may be anxious that “disclosure” of internal documents could undermine any qualified privilege it had in the letter to the agency.

The third – further – reason is that the department gave the minister duff legal advice saying that the letter was safe to publish on her personal Twitter account.

Whatever the reason – whether it be one of the above, or a mix of them, or a reason not currently obvious – a decision was made that this was the department’s problem, and not just the minister’s unfortunate personal political predicament. And this decision presumably was made by a senior official under government accounting rules.

That this is the position is the only natural meaning of the government’s statement: “This [settlement] […] aims to reduce the overall costs to the taxpayer that could result from protracted legal action.”

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Once the government realised it was on the libel hook then it was sensible for the department to close down this litigation as soon as possible.

It appears that the litigation did even not get beyond pre-action correspondence. It seems no claim was issued at the High Court or served on Donelan.

The government legal service seems not to have indulged in any tiresome litigation posturing along the lines of “as taxpayers money is involved we really would need to see the case properly set out in served particulars of claim” or any other similar nonsense.

Government lawyers needed to settle this case, and fast.

There was a problem here.

Fortunately for the government, it was also in the interests of the complainant to settle this matter quickly.

A retraction was offered, with damages and costs, and this suited the complainant.

Had the complainant pressed on, there is little doubt she could have secured an apology – and the word “sorry” was not in the published retraction.

(Given the news coverage, the minister may have well apologised – as it has been widely but incorrectly reported as an apology.)

In the circumstances, both sides could be satisfied with this outcome – though one suspects there was a rather loud “Phew!” in Whitehall when the settlement was reached.

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For a government minister to visit potential legal liability on their department is remarkable, given how the law generally protects ministerial statements and communications. This required a special fact situation.

But.

This sort of thing was also an accident waiting to happen.

There is a information economy in and about Westminster – where ministers and special advisers and lobbyists and researchers and pressure groups and journalists are constantly swapping material between themselves (and sometimes those involved are wearing more than one hat).

It was perhaps only a matter of time before an example of this spilled into official correspondence, and then was tweeted from a minister’s social media account.

And when it happens there can be legal consequences.

Here it was the law of libel – but one can conceive of situations where other areas of law could be engaged, such as misfeasance in public office.

For not only is the law configured so as to protect ministers and politicians in some situations, it also configured so as to impose immense legal liabilities in others.

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Disclosure: I was a government lawyer about twenty years ago.

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Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Many thanks to those of you who support my blogging: I have had to have a short period away from this blog (and pretty much social media generally), but I am now refreshed and regular blogging should now resume.

Sir Keir Starmer and the Litigation Turn of Mind

31st July 2023

The leader of the opposition is a former litigator, and many litigators have a certain strategy – or at least a set of tactics: a certain cautious approach.

This approach is to think backwards from what may happen at trial – indeed sometimes to think backwards from what may happen with any appeal.

This sort of litigator anticipates what can go wrong with a case and thereby acts to, as far as possible, close the potential problem(s) down.

Other litigators can be more gung-ho, trying to make the most of their case at each and every point, from aggressive letter before action to expansive claim forms. Such litigators often encounter set-backs.

The more cautious litigator looks at everything the other way round, focussing on the strengths of the other side and the weaknesses of their own.

The merit of this approach is that if and when one gets to trial one is less exposed to defeat.

And often not being defeated on key points is enough for a good result.

If both sides adopt this approach then the “winning” party will be the one who has made the fewer mistakes.

But.

Politics is not law, and a general election is not a trial.

Yes, there is a place for mitigating or even eliminating predictable lines of attack.

And that may be enough for a political party to at least avoid a heavy defeat.

It may not, however, be enough to mobilise sufficient support so as to make an outright victory more likely.

For that there needs to be a positive message: to have points that the other party instead needs to mitigate or eliminate.

This is not to say that closing down lines of attack is a bad thing, just that it is not a sufficient thing.

A cautious litigation turn of mind has its place, but campaigning is not litigation.

A political leader – even those who were once lawyers – also needs a political frame of mind.

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Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Why the United Kingdom government cannot leave the ECHR without either breaching or re-negotiating the Good Friday Agreement

1st July 2023

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The overlooked obstacle to the United Kingdom withdrawing from the ECHR

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From time to time the demand comes from a government minister, or from one of their political and media supporters, for the United Kingdom to leave the European Convention of Human Rights.

This short blogpost sets out the most obvious obstacle for the government in doing this.

The obstacle – if that is the correct word – is the Good Friday Agreement.

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That thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.

[…]

“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including:  […]

“(b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission

[…]

“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”

And so on.

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The ECHR is not just mentioned in passing in a recital.

Instead the ECHR is integral to the Good Friday Agreement.

Rights under the ECHR that can be relied upon in Northern Ireland are a fundamental part of the agreement.

It was important to Ireland – and to the nationalist community – that there were rights beyond the reach of Westminster and Whitehall (and Stormont) that could be enforced directly against the state of the United Kingdom, including against the police and security services.

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When this obstacle is pointed out, sometimes the response is “Aha! Why not just have the ECHR applicable in Northern Ireland?”

Of course, there is nothing in the Good Friday Agreement which expressly requires rights under the ECHR to be directly enforceable elsewhere in the United Kingdom.

But.

Article 1 of the ECHR provides:

It may thereby not be open to the United Kingdom to be a party to the ECHR and pick-and-choose who within its jurisdiction can have the benefit of the rights.

This would be in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.

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Perhaps the government of the United Kingdom could seek to renegotiate the Good Friday Agreement?

This would mean Ireland agreeing that those – especially nationalists – in Northern Ireland should have their existing legal rights against the United Kingdom state removed.

It would also mean Ireland agreeing that it would not be able to take the United Kingdom to court in Strasbourg.

And it would also mean – in practice – the United States and the nationalist community agreeing that legal rights and protections are removed.

This is not at all realistic.

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And the difficulty cannot be resolved by simply copying and pasting the Convention rights into a domestic statute for Northern Ireland.

For unless the rights are as constructed and interpreted by the Strasbourg court, and unless a disappointed party can petition the Strasbourg court directly, they are not “convention rights” – even if identically worded.

(This is partly why even Dominic Raab’s “Bill of Rights” that was to repeal the Human Rights Act had the convention rights in a schedule and a duty on public authorities to comply with those rights.)

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Part of the difficulty of Brexit was because some did not know or did not care about the particular situation of Northern Ireland. Some also pretended it was not an issue, but as we now know it needed special care and attention – and it still has not been fully resolved.

Similarly those who believe just leaving the ECHR would be easy may again be overlooking the Irish and Northern Irish dimensions.

And unless the Good Friday Agreement is re-negotiated, the United Kingdom leaving the ECHR would place the United Kingdom in breach in Good Friday Agreement.

Well, at least as long as Northern Ireland remains part of the United Kingdom.

And that would be another story.

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This post is partly drawn from this earlier blogpost.

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Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Understanding the significance of today’s Court of Appeal decision on the Rwanda removals policy

29th June 2023

Today the Court of Appeal ruled that the United Kingdom government’s controversial Rwanda removals policy was unlawful.

The judgment is here and there is a court-prepared summary here.

By saying the policy was itself unlawful, this means that each and every possible removal of any asylum seeker to Rwanda for their asylum application to be processed is currently unlawful. There are no current circumstances where a removal would be lawful.

The reason for the unlawfulness is that Rwanda is not a safe place for the processing of asylum claims:

This goes beyond the decision of the High Court that each particular removal happened to unlawful, on a case-by-case basis, because an appropriate process had not been followed. The High Court had said that the general policy was lawful, but each application of it so far had been unlawful.

The Court of Appeal now says that even the policy was unlawful. No removal, even with elaborate procedural compliance, would be allowed.

So both in practice and in the round the Rwanda removals policy has been held unlawful.

Opponents of the policy can celebrate – to an extent.

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Here are some further thoughts about what this decision signifies and does not signify.

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First, and from a practical perspective, the government’s far bigger problem was the initial High Court judgment. It does not really matter if a policy is (theoretically) lawful if the procedural protections required for each individual case are such that, in practice, removals are onerous and extraordinarily expensive.

I blogged about these practical problems when the High Court handed down its judgment:

Today’s ruling that the policy itself is unlawful makes no real difference to the government’s practical predicament with the policy in individual cases.

And the government appears not to have appealed the adverse parts of the High Court judgment.

The Home Secretary, and her media and political supporters, can pile into judges and lawyers because of today’s appeal judgment. But their more serious problems come from the last judgment, and not this one.

The Home Office is simply not capable or sufficiently resourced to remove many, if any, asylum seekers to Rwanda even if the policy was lawful.

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Second, the Court of Appeal decision today is likely to be appealed to the Supreme Court.

And, from an initial skim read of the relevant parts of the judgment, one would not be surprised if the Supreme Court reverses this Court of of Appeal decision.

Today’s Court of Appeal decision is not unanimous – the Lord Chief Justice was in the minority on the key question of whether Rwanda was a safe country for processing asylum claims.

The Supreme Court is (currently) sceptical of “policy” type legal challenges, and is likely thereby to defer to the Home Secretary’s view that Rwanda was a safe country for processing asylum claims – a view also shared by the two judges at the High Court and the Lord Chief Justice.

If the Home Office appeals to the Supreme Court then one suspects it is likely to win.

(Though it must be tempting to the Home Secretary to now abandon this – flawed – policy, and blame the judges.)

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Third, any appeal to the Supreme Court will take time. As it has taken until June 2023 for an appeal decision for a December 2022 High Court decision, it may be another six months before there is a Supreme Court hearing and decision.

And in that time, and unless a competent court decides otherwise, all removals will be unlawful as a matter of policy.

If the government wins at the Supreme Court then there would presumably be further delays while individual challenge-proof removal decisions are made.

In other words, the period for any actual removals before a general election next year will be short.

Even with a Supreme Court win, it will be that few if any asylum seekers are removed to Rwanda before a likely change of government.

(Though it cannot be readily assumed that an incoming government will change the policy.)

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Fourth, it should not be overlooked by opponents of the Rwanda removals policy that the appeal lost today unanimously and comprehensively on every other ground:

These defeats are not any cause for opponents of the policy to celebrate.

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Finally, there is a possibility of a work-around, which the government could adopt.

In the Abu Qatada case it was held by the courts that a deportation to Jordan for a trial was unlawful because of the use of evidence extracted by torture in the Jordanian legal system.

And so the United Kingdom government did a deal that the Jordanian legal system changed its ways so that the deportation could take place.

Abu Qatada was then, lawfully, deported.

(And then acquitted by the Jordanian court in the absence of such evidence.)

This deportation was presented by the United Kingdom government as a win against pesky human rights lawyers – when in fact the government had in reality complied with the judgment.

Similarly, the United Kingdom government may work with the Rwanda government to improve the asylum system, and correct the evidenced defects, so that concerns of the majority of the Court of Appeal are addressed.

No doubt the government would then similarly present any Rwanda removals on this basis as a win against pesky human rights lawyers – but again it would be the government complying with what the court would have approved.

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The judgment released today is long – and nobody commenting on the judgment today – politician or pundit – can have read it and properly digested it.

This post is thereby based only on initial thoughts and impressions.

That said, there is reason today for opponents of the Rwanda removals policy to celebrate.

But perhaps not too much.

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This has been cross-posted from The Empty City Substack.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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“How did this person die? – And what lessons can we learn?”

27 June 2023

A sensible policy proposal to monitor the recommendations of coroners’ inquests

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“How did this person die?”

In any organised society this is one of the most important and basic questions that can and should be asked.

Was it a death that could have been prevented?

Are there things that can be done so that similar deaths can be avoided?

These questions are not just about the immediate, medical cause of death – but the wider circumstances which led to a person dying.

“How did this person die?” is a question which the legal system can often only answer indirectly. A police investigation and a criminal trial can sometimes ascertain the circumstances of a death when there is potential criminal liability. A civil trial can sometimes ascertain the circumstances of a death when there is potential civil liability.

But not all preventable deaths or lethal system failures are matters for the criminal and civil courts. And the purpose of court proceedings is not directly to inquire into facts generally, but to allocate legal liability – which is not always the same thing. For example, criminal proceedings especially have very strict rules of evidence.

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There therefore needs to be another way of inquiring in the circumstances of the death and drawing any lessons – distinct from and in addition to the criminal and civil courts.

A way where the focus is not on the rights and liabilities of persons, but on simply finding out what happened and what that tells us.

And there is such another way.

In England there is the ancient office of the coroner.

Coroners have long provided the public good of conducting inquests into the circumstances of deaths – and coroners can make recommendations that may prevent further deaths and avoid similar lethal system failures.

It is difficult to think of anything that serves a more fundamental public interest.

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But.

There is little wider point in coroners conducting their inquiries and making recommendations if nothing comes of the lessons that have been identified.

And this is a serious problem about our coronial system.

Here is a worked example provided by Inquest, the charity that provides expertise on state related deaths and their investigation:

And here is another case study:

As Inquest say at the end of that case study:

“…there is no central body dedicated to collating and analysing the Government’s follow-up to these recommendations to encourage positive action to prevent further deaths. Instead, it falls to families, lawyers, charities and coroners to join the dots.”

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In essence, the lack of any body (and, indeed, anybody) being responsible for monitoring what happens to coroners’ recommendations robs the coronial system of any wider efficacy.

A public good may be being served by individual inquests into particular deaths, but this public good is not being converted into a wider social benefit.

That there is even this gap is extraordinary.

Other public entities have, in turn, their monitors – for example, the inspectorates of the police and of prisons.

There are many bodies that answer Alan Moore’s question of who watches the watchmen (or, as Juvenal once put it, quis custodiet ipsos custodes?).

Given the fundamental public interest in avoiding preventable deaths and lethal system failures, it would seem to be a no-brainer of a public policy proposal.

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Inquest are today launching a campaign for such a body:

Inquest have also published this persuasive guide – from which the above case studies are taken.

Though the proposed name of a “national oversight mechanism” is a bit cumbersome – I would suggest OffQuest – there can be no sensible doubt that it is required as a thing.

And as we approach the next general election, it would seem straightforward for political parties to commit to such a body in their manifestoes.

It is a gap that should be filled and can be filled, and it is a proposal that can only have benefits.

For after all, the reason why “How did this person die?” is such an important question is that the answer can often help those who are still alive.

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Over at his Substack, Joshua Rozenberg has written a good post on this topic.

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This has been cross-posted from my Empty City substack.

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Photo credit: wikimedia commons.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Why we now don’t just have “proper” political scandals

23rd May 2023

Today in parliament, during a debate on an urgent question related to the conduct of the current Home Secretary, a backbencher asked a striking and thought-provoking question:

“What’s wrong with this country? We used to have proper scandals abour sex or money, or about PM’s invading Iraq…”

There is an answer to this question, though perhaps not the one he wants or expects.

The reason is that the informal and often hidden ways these sort of issues used to be dealt with are no longer followed.

The hyper-partisanship and opportunism of ministers – especially in the last five or so years – means there is now a general attitude of getting away with things.

The unseen checks and balances provided by self-restraint – the soft constitutional conventions, as opposed to hard(ish) constitutional law – are old hat.

Cummings and Johnson may well be gone – but their damage to our constitutional arrangements lingers.

And so – there being no other way to deal with, say, the conduct of the current Home Secretary – it has become a parliamentary and public matter.

There is nothing as a buffer before any mess-up becomes part of day-to-day politics.

And unless ministers relearn the checks and balances of self restraint – in a word, “constitutionalism” – then it may be that there will be a lot more time and attention on these not “proper scandals”.

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Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.