Category: Policy and Policy-Making

The significance of the appointment of Dominic Raab as Lord Chancellor and Secretary of State for Justice

16th September 2021

Yesterday one politician replaced another as lord chancellor and secretary of state for justice – one of a number of ministerial changes in a reshuffle.

So what?

What, if anything, does this change signify?

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The outgoing lord chancellor was Robert Buckland, a conservative member of parliament, former solicitor general, and experienced criminal barrister and former ‘recorder’ (a part-time judge) in the crown court.

He had been in office for just over two years – and there are good, bad and ugly aspects to his term.

The good was that, in large part, the justice system was not dragged into the government’s infantile ‘culture wars’.

A fundamental political assault on judicial review fizzled down to almost nothing (see here).

To the extent to which this was down to his political interventions and tactics, all sensible people should be grateful.

The bad was that the wider justice system is in a bad state, with some parts – especially criminal justice – almost in chaos, with delays of years for basic matters.

This predicament was admitted by Buckland in his resignation letter:

You will see he expressly says that there have been ‘years of underfunding’ – and here it should be remembered that the conservatives have been in office for eleven years.

The ugly is his failure to check the explicit attempt by the government to break the law with the internal markets bill.

Others resigned: the advocate general Lord Keen resigned, as did the treasury solicitor Jonathan Jones.

It was an issue on which a lord chancellor of any integrity should have resigned too.

This is because the lord chancellor has an obligation, reflected in statute, to uphold the rule of law.

The moment the bill was published, the lord chancellor should have resigned.

There was no good reason not to do so.

But Buckland chose to stay on, in breach of his constitutional duty, and – in effect – gave cover to a government explicitly committed to breaking the law.

And his reward for this misplaced political loyalty?

He was casually sacked just to create a vacancy for a minister who had failed in another department.

Buckland will now spend the rest of his political and legal career justifying why he did not resign on the spot.

*

Buckland’s replacement is Dominic Raab, another conservative member of parliament.

Raab has already served as a minister at the ministry of justice and has a legal background.

Yesterday, political sources told the political editor of the BBC that Raab was ‘a senior lawyer’, which the political editor then repeated as a fact without checking.

Raab is, in no meaningful sense, ‘a senior lawyer’.

This is not to make a political or partisan point, just a statement of fact.

He left the legal profession after a handful of years to go into politics.

There is certainly nothing wrong with that – and ceasing to be a practising solicitor can be a wise thing to do.

And Raab does have good legal credentials – prizes, a higher degree, and experience at a well-regarded city law firm and at the foreign office.

But he was only ever a junior lawyer.

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A case can be made for Raab’s appointment being a good thing.

He is a qualified lawyer – and many have complained when the lord chancellor has not been a qualified lawyer – with a good academic and professional background.

He is also deputy prime minister – which means that he will perhaps be in a stronger position in negotiations with the treasury so as to correct the historic underfunding described by his predecessor.

And he has a sincere (if haphazard) belief in rights, as shown by his 2010 book and his emphasis as foreign secretary on human rights for those under other regimes.

Sudan:

Syria:

Sri Lanka:

Belarus:

China:

And Russia:

There are many others.

Raab has tweeted about human rights dozens of times as foreign secretary.

And only, it seems, three times about Brexit – even though he was a strong Brexit campaigner and former Brexit secretary.

*

So what can possibly be wrong about this appointment?

Legal background, qualified lawyer, influential within cabinet, genuine interest in human rights (at least for foreigners).

Why was a legal journalist able to (correctly) tweet this?

*

Part of the answer is that – notwithstanding his interest in human rights abroad – Raab has a fixation with repealing the human rights act in the United Kingdom.

And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.

If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.

Raab may also be tempted to re-open the judicial review question, disregarding Buckland’s more conciliatory approach.

*

The real opposition to Raab’s, however, is more political than legal – his brash and confrontational political approach tied to a sense that there is little substance.

And so on.

*

But.

Every new lord chancellor and justice secretary should be given a fair chance.

For example Michael Gove was a surprisingly good lord chancellor and justice secretary – and not just because he was not Chris Grayling.

Perhaps Raab will also turn out to be a surprisingly good lord chancellor and justice secretary.

Perhaps.

*

But.

The real significance of the appointment is not about personalities.

It is about the office of lord chancellor.

This office used to be occupied usually by a senior lawyer-politician, with no further political ambitions.

But since the creation of the ministry of justice under Tony Blair and Charles Falconer – which combined the old lord chancellor’s department with parts of the home office – the department has generally been under politicians on the rise.

And now it is being given to politicians on their fall.

Here, a consolation prize for being sacked as foreign secretary.

Just another spending department with just another politician in charge.

Yet: the lord chancellorship is special – or should be.

The lord chancellor has a duty to protect the rule of law in government and the independence of the judiciary.

And here there will be a tension with Raab’s appointment.

For as deputy prime minister, Raab will be answerable in parliament for the government as a whole (in the prime minister’s absence).

He will also, if he wishes, have a dominant position on any cabinet committees he choses to attend.

He will, in essence, be part of the thing that that lord chancellor is there, in part, to protect against.

No other deputy prime minister has also been lord chancellor.

This tension means potential problems ahead.

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After the creation of the ministry of justice it was perhaps only a matter of time before it became just another political department.

And to this extent, the appointment of a politician such as Raab to the office in these circumstances was also just a matter of time.

But this does not take away from some of the tensions – perhaps contradictions – set out above.

The appointment is certainly good for law and policy commentators.

There will be a lot to commentate on.

It may not turn out so well for law and policy.

**

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9/11 x 20

11th September 2021

The general lot of law and policy in the last twenty years has not been a happy one.

Torture used and regularised; an invasion and occupation that not only had no legal basis but also greatly discredited politics itself; the growth of the surveillance state; and the general illiberal turn to nationalistic populist authoritarianism.

All this followed the terrorist attack twenty years ago today.

That these things followed that attack cannot be disputed, as a matter of chronology.

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But what about causation?

Did 9/11 cause the illiberal turn?

Anyone with an interest in the subject will have a view.

But I am afraid I think the illiberal turn would have happened anyway.

There was never any rational connection between 9/11 and the Iraq invasion – and so there would have just been another pretext instead of the ‘war on terror’.

Those with power will torture if they can get away with it – and how the United Kingdom so readily participated in torture would not surprise anyone with knowledge of what the British did in Kenya and Northern Ireland in the post-war period alone.

Those with power did not need a reason to use and regularise torture: they just need an excuse.

And the developments in computer and communications technology since 2001 would have meant the state seeking more surveillance powers, regardless of the attack on the twin towers.

So in essence: it is plausible that all the bad things in law and policy that have happened since 9/11 would have happened anyway.

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The sordid return of ‘the will of the people’

10th September 2021

This government is abandoning manifesto commitment after manifesto commitment.

This is notwithstanding that, in a representative parliamentary democracy, it is only by manifestos that we have anything that approximates to mandates for a majority party returned in a general election.

Such manifesto commitments are not, it seems, binding commitments on the government.

But.

Elsewhere in government, the ‘will of the people’ is being invoked – and perhaps in the mist sordid and disgusting way imaginable to any any sensible and humane person:

Because of this policy, fellow human beings will die.

There will be those who will be dead tomorrow who otherwise would not be dead but for this policy.

This policy is not in any manifesto.

The invocation of ‘it is what people want’ is nothing more compelling than speculation.

But it is enough.

Because ‘it is what people want’ then other people will die.

This is a ‘pick and choose’ approach to representative democracy.

Things that had been explicit in a manifesto on which people people had actually voted are casually discarded.

And by reason of the slogan ‘it is what people want’ lives of fellow human beings will be just as casually discarded.

The common feature is executive arrogance.

Ministers believe they can do as they wish to anyone, regardless of actual mandates.

This does not mean well for our democracy.

Brace brace.

**

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How the government has bounced this week’s tax hike through parliament like it bounced through the Brexit deals

9th September 2021

This week’s political excitement about social care and national insurance seems familiar.

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If you set aside all the noise and drama, all that has happened this week is that the government has – at speed – got a huge tax increase past its political and media supporters.

Indeed, a number of those very political and media supporters have clapped and cheered.

There will be no meaningful reform to social care.

There has been no meaningful scrutiny of any proposals.

And, as this blog averred recently, it is political and legal nonsense to say that the extra revenue being raised will be ‘ring-fenced’ for health or social care.

Had this not been done at speed then the implications of the huge tax hike and lack of policy substance may have become apparent.

It has simply been a political smash and run.

A deft exercise in getting something unpalatable past your own political and media supporters.

And it has worked – if you understand it in these cynical terms.

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What makes this seem familiar?

Well.

It is almost the same model of what happened with the Brexit exit and relationship agreements.

They too were rushed through parliament so as to prevent any useful scrutiny from the government’s media political supporters.

The brisk pace meant that many issues were hidden from view – until it was too late.

And, at the time, the government’s political and media supporters clapped and cheered too.

Many are not clapping and cheering now.

**

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It is easy to get trade deals – if you accept what you are offered, and drop what you want

8th September 2021

I was once a central government lawyer for two-and-a-half years, dealing with public procurement, freedom of information and general commercial matters.

And one of the tasks I had was to support the United Kingdom (and thereby European Union) negotiators on the revision to the WTO agreement on public procurement.

This was exciting: international trade law!

How wrong I was.

In the two-and-a-half years I assisted on the the revision to the WTO agreement on public procurement, I do not think the negotiation moved forward substantially one jot.

(This was not my fault.)

In the words of the WTO website:

“Not long after the implementation of the GPA 1994, the GPA parties initiated the renegotiation of the Agreement according to Article XXIV:9 of the 1994 Agreement. The negotiation was concluded in December 2011 and the outcome of the negotiations was formally adopted in March 2012.”

So: 1994 to 2012.

Eighteen years – to revise an agreement already in existence and the revision of which most parties to the agreement broadly were in agreement with.

Eighteen years.

My two-and-a-half years was in the middle of that period, and that period were not much more than a splash in a river.

Negotiators came and went for all parties, and one suspects there was not anyone engaged with the end of the agreement who had been concerned with it from the beginning.

The one thing I learned was that international trade and commercial agreements can be slow: very slow.

*

But international trade and commercial agreements can also be quick: very quick.

One way that can be quick is if they are rollover agreements, a copy-and-paste of what was in place before and which all the parties are happy with.

Another way is to just accept what is on offer and to drop any demand which will not be met.

Such capitulations can be done very quickly indeed.

And so here is today’s news:

Of course: a trade agreement with Australia sounds very glamorous.

The sort of news that would make certain people gladdened just because of the anglophone, commonwealth connotation.

But a new trade agreement entered into at speed, other than a rollover, will tend to be to the disadvantage of one party and not the other.

Any trade deal that is worthwhile for both or all sides will not be done at speed.

We were once told that ‘no deal’ was better than a ‘bad deal’ by those who now clap and cheer at any deal.

**

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To Brexit and back again: how political ‘mandates’ have returned to meaning nothing

6th September 2021

Long ago, before 2016, ‘mandates’ were not taken that serious in the politics of the United Kingdom.

To the extent that a mandate from a general election made any constitutional difference, it meant that in practice (and by convention) the house of lords would not block anything that had been in a manifesto of the majority house of commons party.

There certainly was not any firm obligation on the government to bring each manifesto commitment to the floor of the house of commons, let alone pass any legislation.

And from time to time – for example, with the poll tax (‘community charge’) endorsed in the 1987 general election – a government will reverse a policy contained in a manifesto within the same parliament.

Because, long ago, mandates were seen as weak things in our representative, parliamentary democracy

And then.

And then came the 2016 referendum on membership of the European Union, which had a small though clear majority in favour.

This result – in a non-binding referendum – became ‘the will of the people’.

The result was a mandate that no person or institution would be allowed to gainsay.

If senior judges said that there needed an act of parliament for the Brexit notification to be made, they were howled at as ‘enemies of the people’.

Members of parliament opposed to the departure were similarly denounced.

An electoral mandate was no longer a weak thing.

The mandate was the strongest thing in politics.

A force so strong that nothing could stand in its way.

And then.

The United Kingdom departed from the European Union.

Now, the same government that insisted that ‘the will of the people’ was absolute is now seeking to renege on its manifesto commitments.

The international aid budget has been cut, and it looks like the ‘triple lock’ commitment and tax commitment are both going, perhaps this week.

The government no longer cares that much about mandates.

The government no longer cares about the will of the people as expressed through a ballot box.

Mandates are weak things again.

It has been a strange few years, politically.

**

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Looking at today’s select committee hearing as a practical exercise in holding the foreign secretary to account

1st September 2021

The word ‘accountability’ in a political context means that a person with political power is required to give, well, an account of what they do and do not do.

This in turn means that exercises in political theatre – such as dramatic resignations and sackings, or prime minister’s questions, and so on – are not examples of political accountability.

Indeed, they can often be a substitute for the minister explaining about what happened on their watch.

And general elections are not an exercise in practical accountability: even taking the electoral system into account, parties campaign on broad manifestoes and are not obliged to fulfil and mandate if elected.

The nearest we have in the United Kingdom parliament at Westminster to the means of practical political accountability are select committee hearings.

Earlier today there was one such select committee hearing – the foreign affairs committee session with the foreign secretary Dominic Raab.

And to a certain extent this worked as an exercise in accountability: some further information was provided as to the circumstances of the evacuation from Afghanistan.

But rather than providing a full account of what happened, the foreign secretary often seemed uninformed and unaware, and he sought to hide behind long discursive answers unrelated to the questions asked.

Of course: by showing the vacuity of the foreign secretary the session was an exercise in political transparency, if not in accountability.

But there was nothing the committee could do – at least in the session – to require the foreign secretary to give a more complete and direct account of what happened.

And the session was not long – about an hour or so.

Yet this is the best we will get – the foreign secretary is now safe again from being probed closely as to what happened and did not happen.

We will return to ‘politics as normal’.

Perhaps one day, some earnest public inquiry will piece together a fuller account of what happened with Afghanistan.

And the time there is account, the relevant politicians will have long gone from being held to that account.

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Ministerial resignations: the ‘Estelle Morris resignation’ vs the ‘Lord Carrington resignation’

29th August 2021

A recent post on this blog set out why one should be sceptical of ministerial resignations – at least as a form of practical political accountability.

Many resignations – and sackings – are political theatre, and they are not instances of political accountability but substitutes for it.

The post averred that resignations still have their place, but that – all other things being equal – such resignations are not really about accountability.

No account ends up being given of how things went wrong, and why.

Instead there is a political CTL+X or CTL+Z and the political typing goes on as before.

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That said, one famous ministerial resignation was that of Lord Carrington in 1982.

In his letter of resignation, he stated:

‘The Argentine invasion of the Falkland Islands has led to strong criticism in Parliament and the press of the Government’s policy. In my view much of the criticism is unfounded, but I have been responsible for the conduct of the policy.

‘I think it right that I resign.

‘As you know, I have given long and careful thought to this. I warmly appreciate the kindness and support which you showed me on Saturday. But the fact remains that the invasion of the Falkland Islands has been a humiliating affront to this country.’

In his memoirs he stated:

‘The nation feels that there has been a disgrace. Someone must have been to blame. The disgrace must be purged. The person to purge it should be the minister in charge. That was me.’

He is generally regarded as having resigned for not having anticipated the Argentine invasion of the Falklands Islands.

Few historians now blame Carrington – and indeed the minister more responsible for signalling to Argentina that the United Kingdom may have a weak resolve to defending the Falkland Islands was the defence secretary, who stayed in his job.

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Another resignation, though now less famous, was that of Estelle Morris as education secretary in 2002 – and it one of the most remarkable and refreshing political resignations of modern times.

Her reasoning was startlingly frank:

‘I’m good at dealing with the issues and in communicating to the teaching profession. I am less good at strategic management of a huge department and I am not good at dealing with the modern media. All this has meant that with some of the recent situations I have been involved in, I have not felt I have been as effective as I should be…’

She resigned because she was not in the right job, and she said so.

And good on her – and it would be better if more people with political power were so candid.

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The current foreign secretary Dominic Raab is criticised in today’s press for failures to engage properly with the issue Afghanistan in the run up to this month’s evacuation.

In particular:

This is a serious charge – perhaps almost the most serious charge that could be made against a foreign secretary.

This is not just getting a foreign policy issue wrong – say, like what was alleged against Carrington – but not even engaging with it in the first place.

This is foreign policy that is not even wrong, in the words from another context of Wolfgang Pauli.

If the charge is correct then Raab cannot even give an account of what he did wrong and why made those errors, as he did not do anything.

He cannot offer any account, for there is no account to be given.

And so there cannot – literally – be accountability.

If he were to now resign in these circumstances, it should be more of an Estelle Morris resignation than a Lord Carrington resignation.

*

And just as resignations and sackings are substitutes (usually) for accountability, another things is stark.

If the newspaper report is accurate, being ‘totally focused on Brexit’ is a substitute for good policy and government.

**

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The folly of diverging from the GDPR just because we can

26th August 2021

Like a dog that caught the car, the United Kingdom government is wondering what to do with Brexit.

Today’s offering, reported in the Telegraph is overhauling or replacing or something to do with GDPR – the European Union’s detailed data protection regime.

The flavour of the suggestion is in these tweets:

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The proposal has the usual signs of superficial thinking, with the ‘ending red tape’ and ‘row with Brussels’ lines that are the substitute for any serious policy thought.

In fact, the rows will not be with Brussels – the European Union and its businesses will be at ease with the United Kingdom erecting yet another non-tariff barrier against the interests of British businesses.

The rows instead will be with those British businesses, which will now have two lots of red tape to negotiate instead of one.

This is so bleedingly obvious that it really should not need typing out.

None of this is to say that the GDPR is perfect legislation – it certainly is not.

But compliance with one technical and complicated regime is onerous enough – multiplying such regimes just because we can is folly.

*

Ministers and their political and media supporters will clap and cheer at this exercise in nose-cutting in spite of a face.

The European Union, like bemused household cats, will just stare at the spectacle.

It is all rather silly, and rather depressing.

*

The United Kingdom’s digital economy will not so much turbocharged but torpedoed.

**

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The ‘benefit of hindsight’ is becoming the modern ‘benefit of clergy’ – politics, accountability and rhetoric

25th August 2021

There are various means by which those with political power can evade accountability for what they do and do not do.

(By ‘accountability’ I mean those with political power being obliged to give an account for what they have done and not done.)

One means is by minimising or removing any formal checks and balances within our constitutional arrangements – answering to parliament, the independence of our courts, the effectiveness of judicial review, an impartial civil service, public service broadcasting and so on.

A second means is to disregard informal and non-legal self-restraints within the constitution – to ignore the ‘good chaps’ theory of the constitution, where so much depends on the willing observance of unenforceable conventions and rules of procedure.

A third means is to ensure that any special method of accountability – such as a public inquiry – is as delayed or limited as possible, if it takes place at all – and if it does take place, the ‘lessons learned’ are for another generation of politicians.

And a fourth is by means of rhetoric.

In particular, the increasingly regular occurrence of ministers and political appointees invoking ‘hindsight’.

In the commons, the prime minister responds to explanations of how he could have dealt with foreseeable things in a timely manner – regarding Brexit and other things – with the jibe ‘Captain Hindsight’.

The politically appointed head of the national health service test and trace programme told a parliamentary committee, with a straight face:

‘With the benefit of hindsight the balance between the supply and the demand forecast wasn’t right. Clearly that is true.’

And, now with Afghanistan, we have the foreign secretary explaining why he carried on taking a holiday during the fall of Kabul:

*

Brexit.

COVID-19.

Afghanistan.

*

In most, if not all, of these situations the potential problems were bleedingly obvious in real-time, at the time.

What was required was not hindsight but foresight.

But we now have a group of politicians who have realised they can benefit from a special form of political herd immunity by deriding criticism as ‘hindsight’.

And this, in turn, provides them with a licence to not properly think things through at the time and to take decisions (or not take decisions) for reasons of perceived political expediency.

For they know, in the back of their minds, that when things go wrong all they have to say to critics:

‘…with the benefit of hindsight’.

*

A healthy polity does not greatly depend on formal constitutional instruments – and legalistic words in a document can only make so much difference.

A healthy polity instead depends on issues that can be characterised as ‘cultural’ as well as constitutional – the general sense of what those with political power can get away with.

And, as the very stuff of a political culture is largely words, symbols and communication, when that culture is debased then it becomes significantly more difficult to hold ministers to account.

The ‘benefit of hindsight’ is becoming the modern ‘benefit of clergy’.

If this trend continues, then our polity will be the worse for for it.

And this will not only be obvious with…

…well, hindsight.

**

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