Category: Policy and Policy-Making

The ejection of a Member of Parliament for pointing out the lies of the Prime Minister is a practical example of the function-failure of the UK constitution

The suspension of the member of parliament Dawn Butler from the house of commons is a significant example of the function-failure of the constitution of the United Kingdom.

Butler’s suspension was because she called the prime minister a liar on the floor of the house of commons.

But as the current prime minister casually and freely lies in the house of commons (and elsewhere) this suspension creates a constitutional mismatch.

In essence: there is no real sanction for a prime minister (or other member of parliament) for lying to the house of commons, while there is a real sanction for those members of parliament who point it out.

It is an extraordinary – and counter-intuitive – constitutional predicament.

There is something very wrong here.

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How did we get into this mess?

First, it must be understood and accepted that there is a problem with prime ministerial dishonesty.

Perhaps there always has been – and our current prime minister is no worse than his predecessors – but even if this shruggy view is accepted, there is no doubt the current prime minister lies and lies.

That Hamlet’s father and Jacob Marley were both dead to begin with, and that Boris Johnson  lies, are fundaments in English culture.

One source for the prime minister’s ongoing dishonesty is this particularised, non-sensational list put forward by leaders of six parties in the house of commons to the speaker:

There are similar examples in almost every session of prime minister’s questions.

A more sensational compendium is in this widely viewed video from Peter Stefanovic:

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The reason to emphasise the prime minister’s actual dishonesty as a real concern is that the supposedly pragmatic constitution of the United Kingdom is supposedly good at practical (if inelegant) solutions to actual problems.

This, we are told by constitutional fogeys, is why our constitution is cuts above the formal codified constitutions of foreigners with their ‘rigid’ rules.

Well.

Here is an actual constitutional problem in need of a practical ‘flexible’ solution – and we ain’t got one.

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The second aspect of the problem is that the rules of parliament (which are distinct from the law of the land) in effect prohibit members of parliament from accusing other members of parliament of dishonesty – regardless of whether there is any dishonesty.

It would even be against parliamentary rules to say of a member of parliament that they are a liar even if the lies have been admitted.

The formal guide to the rules of parliament is known as Erskine May, and the relevant passage about accusations of dishonesty is:

‘Expressions when used in respect of other Members which are regarded with particular seriousness, generally leading to prompt intervention from the Chair and often a requirement on the Member to withdraw the words, include the imputation of false or unavowed motives; the misrepresentation of the language of another and the accusation of misrepresentation; and charges of uttering a deliberate falsehood.’

This is not an absolute bar to making accusations of dishonesty against other members of parliament – there is a formal but ineffective way:

‘If a Member wishes to pursue accusations of a kind not permitted because of these principles, the proper course is to table a distinct motion about the conduct of the other Member.’

The issue with such a motion is that – even if passed: so what?

Erskine May also does have a section on misleading the house, which provides:

‘The Commons may treat the making of a deliberately misleading statement as a contempt.’

To which the issue again is: so what?

One may as well cast a line into the Thames, catch an improbable and unpolluted fish, and slap that unfortunate fish on the dispatch box.

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The wider predicament is that the constitution of the United Kingdom is premised on what the historian Peter Hennessy has long characterised as the ‘good chap’ theory of government.

Here is Hennessy’s phrase being used back in the innocent days of 2005 where the concern was merely memoirs by former officials.

More recently, in 2019, here is Hennessy and another author explaining in detail the failures of the ‘good chap’ theory – a report which should be read by anyone with an interest in constitutional affairs.

In essence: the constitutional arrangements of the United Kingdom work as an honour-based system based on those with power exercising self-restraint.

All it takes is a knave to disrupt and undermine the system – and there is nothing within the system to check and balance such knavery.

This complacency is why there are more ready sanctions against those who accuse ministers of dishonesty than there is against the dishonesty of ministers – for the latter, according to constitutional fiction would not (or should not) happen.

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There is merit in having a general rule against lightly making serious accusations in the houses of parliament.

But the counterpoint to such a rule is that there should be a practical means of addressing the problem of ministerial dishonesty.

Otherwise we have the current situation: wonky, lop-sided and discrediting.

That Butler should face a serious a sanction while Johnson does not defies common sense and it should should defy our constitutional arrangements too.

Some may say all this shows that there is a need for a ‘written’ (or codified) constitution.

But the solution to this problem does even not need such a drastic (and unlikely) change – and the problem of executive dishonesty happens in states with written constitutions too.

The solution would be for constitutionalism to (again) be taken seriously by politicians generally.

Constitutionalism (a theme of this blog) is the notion that there are political rules and principle that are above partisanship.

The reason why the prime minister can get away with such dishonesty is that a majority of the house of commons let him.

If a majority of the house averred that such conduct was unacceptable, regardless of party or faction, then the speaker would have the powers to address the issue.

As it stands, the speaker is given the powers to deal with accusations of dishonesty, but not the dishonesty itself.

It would not need a written constitution to solve this problem.

It would instead take resolution – and, literally, resolutions.

It would need members of parliament to take constitutionalism seriously.

And until members of parliament take constitutionalism seriously again, we are going to have the now-familiar sight of our dishonest prime minister sitting safely at the dispatch box, dismissively shaking his head – while those who point out his lies are ejected.

And that is because the constitution is dismissively shaking its head too.

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Explaining the attack on judicial activism that never happened – three theories

22nd July 2021

The great theatre critic Kenneth Tynan said somewhere that any good theatre critic can describe what the the theatre of their day was doing – the challenge was to explain what the theatre of their day was not doing but could be doing, and why.

This is the same challenge for all commentators, including those of us who seek to explain what is happening – and not happening – with law and policy.

And, as this blog described yesterday, there one thing that is not happening is the government not making a full frontal attack on judicial review in the new courts  bill published yesterday.

(On this, see also Helen Mountfield QC at Prospect today.)

It is always weird when nothing happens when something is expected to happen.

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“Without venturing for Scrooge quite as hardily as this, I don’t mind calling on you to believe that he was ready for a good broad field of strange appearances, and that nothing between a baby and rhinoceros would have astonished him very much.

‘Now, being prepared for almost anything, he was not by any means prepared for nothing; and, consequently, when the Bell struck One, and no shape appeared, he was taken with a violent fit of trembling.’

– from A Christmas Carol by Charles Dickens

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Law and policy commentators were yesterday expectant of a rhinoceros, if not a baby.

So what was finally published – a mild piece of legislation – has given us a fit of trembling.

What have we missed?

And what can explain what happened?

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So far there are three broad theories.

The first is that this is a political false flag.

That the government has an illiberal plan – but for some reason is misdirecting us with this bill.

And indeed, as the eminent admiralty law jurist Gial Ackbar once averred, some things can be a trap.

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Could the ministry of justice really be planning to introduce a raft of amendments late in the passage of the bill, so as to force illiberal measures through?

One would hope not – and one expects ministry of justice officials and lawyers to have more dignity than their home office counterparts.

And – in general terms – bills often start off more contentious than they end, so it would be unusual for such a game of constitutional bait and switch.

That said, one should not let one’s laser field down: this government will seek to be illiberal if it can get away with it.

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If it is not a trap, there are two other possible broad explanations.

One is that put forward by this blog yesterday – which I will call the DAG theory, if only to distinguish me from Ackbar.

This theory is government-facing – and goes to the notion that there is (or was) actually a problem of judicial activism being a myth.

I first put this argument forward in my Prospect column last year, where I set out why there was a discrepancy between the (supposed) fears of the government (and its political and media supporters) and the reality of mundane administrative law decisions.

It would thereby not be a surprise that when the government came to actually legislate – rather than speechify – there was no real problem to solve with primary legislation.

The government had walked up a stair and passed a problem that was not there, and the problem was not there either yesterday, and indeed it had gone away.

If so, this is a similar to previous situations, where the government has sought to ‘reform’ the human rights act or to deal with ‘compensation culture’.

It is always difficult to make laws against turnip-ghosts.

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But there is a third theory, which you may find more plausible than either Ackbar’s or my own.

And that was put forward on Twitter by Alexander Horne.

Instead of my government-facing explanation, Horne argues that it is the policy of the courts that has changed.

And that because there is now no problem of judicial activism, it follows there is no need for a solution.

Horne makes good points.

There is certainly a shift in the supreme court under the new president Lord Reed – and Reed is, as this blog set out in a previous post, a judge who can write that judges should give the assessments of the home secretary more respect with a straight face.

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Where Horne and I agree is that there is currently no problem of judicial activism that needs solving – the difference between us is that I aver it was a turnip-ghost all along.

Whichever theory is correct – Ackbar, DAG or Horne – there will be some commentators and campaigners who will contend that even the two proposed reforms are too much, and that they must be opposed loudly and brashly, and deploying the language of constitutional conflict.

But a good advocate knows that one should choose one’s battles.

The government’s proposals should still have the benefit of anxious scrutiny – just in case Ackbar is correct.

But one should be wary that the language of fundamental opposition to the government be devalued, for if is wasted here then it will have less purchase when it is needed.

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A final word to the Judicial Power Project – a group with the strange view that the primary problem in the United Kingdom constitutional is judicial power and not the lack of checks and balances on either the executive or the legislature.

It would appear that the Judicial Power Project are underwhelmed with the reforms they have so long campaigned for.

You would need a heart of stone not to laugh.

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The Home Office wants to reform Official Secrets law by pretending journalism does not exist

Over at the Guardian there is an important article – which is also worth reading just for its byline

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A rare sighting in the wild of Duncans Campbell

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The article in turn refers to this government consultation document.

The document is interesting (and worrying) in many ways – but one significant feature is how it shows the state has realised that the old state secrecy model in unsustainable in the new technological and media context.

The concern primarily used to be about what could be done by means of espionage.

And this generally made sense, as the means of publication and broadcast were in the hands of the few.

Now the bigger threat is mass-publication to the world.

This is a particularly striking passage (which I have broken into paragraphs):

“…we do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989.

“Although there are differences in the mechanics of and motivations behind espionage and unauthorised disclosure offences, there are cases where an unauthorised disclosure may be as or more serious, in terms of intent and/or damage.

“For example, documents made available online can now be accessed and utilised by a wide range of hostile actors simultaneously, whereas espionage will often only be to the benefit of a single state or actor.”

Unauthorised disclosure is, of course, at the heart of investigative journalism – indeed some define news as being what other people do not want to hear.

And there is already an offence in respect of unauthorised disclosure by third parties.

But that offence was enacted in the happy halcyon days of 1989 – the year incidentally that the WWW was conceived.

A time where the technological extent of unauthorised disclosure was Spycatcher being published as hard copy books in Australia.

So to a certain extent, the consultation paper is not new: the state still wants to control and prohibit what unauthorised third parties can disclose to the world.

What has changed, however, is the scale of potential disclosures – and that also has changed the priority of dealing with such onward disclosure.

But, as the Duncans Campbell aver, this reorientation of the law of official secrets needs to accord with the public interest in accountability and transparency.

In the consultation paper, ‘journalism’ is not mentioned – and ‘journalist’ is mentioned in passing twice.

The role of the media – and the rights and protections of those who publish information to the world – should instead be integral in any sensible regime of official secrets.

Else we will have the spectacle of the 2020s equivalent of the misconceived and illiberal (and preposterous and futile) Spycatcher injunctions of the 1980s.

Not having proper regard to the public interest in transparency and accountability in the making of any public policy – and especially in respect of national security and official secrets – means you have to deal with these foreseeable concerns later.

Journalism does not go away, just because you do not mention it and pretend it is not there.

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‘Forgive us our trespasses’ ‘Trespassers will be prosecuted’ What is the law of trespass about? And what could it be about?

17th July 2021

My blogging and journalism tends often to be about public law – that is the law relating to or enforced by the state: constitutional law, criminal law, and so on.

But my primary interest in law – at least on a day-to-day basis as a solicitor – is the law of obligations and of (intellectual) property.

And one concept that has long fascinated me is the law of trespass – and how it contrasts with other areas of common law such as contract and tort.

So over at Prospect magazine this month, my column is on what the law of trespass is about – and what the law of trespass could be about.

In the event of any questions or comments on that column or the topic generally, do set them out below.

 

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The best of questions and the worst of speeches – a practical example of the accountability gap in UK policy-making

15th July 2021

When the question came, it was superb.

Take a moment to listen to this question to the prime minister from the Sky political editor Beth Rigby – and hold on to hear her follow-up.

As a question from a political journalist to a prime minister, the question could not be bettered – in form, content, or delivery.

Superb – but not exceptional.

The fact is that there are some outstanding journalists – in the United Kingdom and the United States – capable of asking excellent questions.

In the United States even before the election of Donald Trump as president in 2016, many of his material and manifest lies, faults and failures were already in the public domain – thanks in part to diligent investigative journalism.

But it did not matter.

A sufficient number of voters clapped and cheered for Trump anyway for him to win the electoral college, if not the popular vote.

Similarly, sufficient number of voters clapped and cheered for Boris Johnson and his governing party to win the general election in 2019, if not the popular vote.

And Johnson’s material and manifest lies, faults and failures were also in the public domain.

It did not matter.

It is a public good – that is a good that does not need any further justification – that journalists as brilliant as Rigby and others ask these questions.

But it is not enough.

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How do politicians get away with it?

Here we must turn to the speech that the prime minister gave before the press conference.

The speech was a policy speech – not a political speech to a party conference or a rally.

The speech was also a formal speech as prime minister, with the text formally published on the government’s official website.

And it was perhaps the worst formal policy speech ever given by a prime minister.

Look at the state of this:

Here is just one sentence:

There are prisoners in Belmarsh with shorter sentences.

The speech is gibberish, for sentence-after-sentence and paragraph-after-paragraph.

And even if you want to give the benefit of the doubt – as not even lawyers and legal commentators speak as precisely as they write – this is not an unofficial transcript but the version approved for formal publication on the official government website.

And regardless of form, there is not a single concrete policy proposal in the speech.

Just words, words, words.

How does he get away with it?

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We have a juxtaposition, a tension – if not a contradiction – in our political and media affairs, and it has implications for all policy-making and law-making.

We may well have first-rate media questions – but we also have low-level political accountability.

Why?

Because politicians with executive power – at least in the United Kingdom – rarely have to be publicly accountable when it can really matter.

A prime minister can brush off a journalist’s question.

A prime minister can brush off the leader of the opposition.

A prime minister with a majority, and ministers generally, are not publicly accountable to anything in any meaningful way for their policy-making and law-making.

Even general elections are not a real check or a balance – as the government reneging on manifesto commitments show.

There is, of course, political accountability to their own back-benchers – but that is rarely in respect of specific policies or laws, and that accountability is informal and often hidden in private meetings and communications.

That is not public accountability.

And so we have the concurrent spectacle of the best of questions and the worst of speeches, and there is little or nothing anybody can do to make the situation any different.

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Why the government did not ‘override’ an Act of Parliament over overseas aid – the concerning thing is that the government acted in accordance with the law

14th July 2021

Yesterday there was this stunning tweet from Lord Falconer, the experienced QC and a former lord chancellor – and now a Labour spokesperson.

There are many things to be said about the government’s decision on this – for example there is what former prime minister John Major said:

There is nothing positive to say about this illiberal and misconceived decision, and it should be opposed by every sensible person.

But what Falconer said appears incorrect – either in the head tweet or taking the thread as a whole.

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The correct position, as has been previously set out on this blog, is that the obligation under the International Development (Official Development Assistance Target) Act 2015 is not an absolute obligation.

The act provides for a statutory target of 0.7% of gross national income is sent on overseas aid – but this has no legal force and is certainly not absolute.

Section 1(1) provides:

“It is the duty of the Secretary of State to ensure that the target for official development assistance (referred to in this Act as “ODA”) to amount to 0.7% of gross national income (in this Act referred to as “the 0.7% target”) is met by the United Kingdom in the year 2015 and each subsequent calendar year.”

Section 1(1) is subject to wide wide exceptions in section 2(3):

“(a) economic circumstances and, in particular, any substantial change in gross national income;

(b) fiscal circumstances and, in particular, the likely impact of meeting the target on taxation, public spending and public borrowing;

(c) circumstances arising outside the United Kingdom.”

In view of these exceptions, the section 1 cannot be called ‘absolute’.

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To take advantage of an exception, the government has to lay a statement before parliament.

This is set out in section 2 of the act, which – of course – as much a part of the legislation as section 1.

And that is what the government did yesterday – the statement is here, and it states:

‘The government will continue to act compatibly with the International Development (Official Development Assistance Target) Act 2015, under which accountability is to Parliament. The Secretary of State will lay a statement in Parliament in accordance with section 2 of the Act in relation to each calendar year in which the government does not spend 0.7% GNI on ODA.’

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The legal problem with the international aid cut is not directly with what the government did – for they have complied with the act.

The problem is with the sloppy drafting of the legislation, which makes the target obligation nothing more than a nice-to-have.

The public understanding of law is a valuable but fragile thing and such misleading comments undermine the public understanding of law.

The correct response to sloppy legislation is not sloppy commentary.

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As a post script, even the section 2 exceptions do not really matter as section 3 explicitly robs the entire duty of any legal usefulness whatsoever:

“(1) The only means of securing accountability in relation to the duty in section 1 is that established by the provision in section 2 for the laying of a statement before Parliament.

(2) Accordingly, the fact that the duty in section 1 has not been, or will or may not be, complied with does not affect the lawfulness of anything done, or omitted to be done, by any person.”

What a useless piece of legislation.

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The media and policy contexts of Tyrone Mings’ extraordinarily powerful tweet

13th July 2021

Yesterday the England international and Aston Villa footballer Tyrone Mings posted this tweet:

There is no equivocation: the express charge – that the home secretary is both stoking the fire of racism and a hypocrite – made by a senior and outstanding footballer is about as serious a thing that could be said by the one of the other.

That it is a quote tweet of the home secretary – and thereby both a direct response to and gloss of the minister’s tweet – makes it all the more striking.

Even without knowing anything more of the circumstances, it is a text of extraordinary power.

And at the time of posting this blog, the tweet had over 400,000 likes and 140,000 retweets/quote tweets – dwarfing the figures of the home secretary’s tweet.

It would appear our home secretary’s populism is not that popular.

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Understanding the various contexts for Tyrone Mings’ tweet adds to and does not diminish its force.

But such is the power of the tweet the contexts are also worth considering.

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One context is that this is the latest contribution from an individual with an open and long-standing interest in racial and social justice.

This is Tyrone Mings last year in Birmingham at the protests at the death of George Floyd:

Unlike politicians, for him this is no bandwagon.

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Another context is that social media allows there to be a countering and opposite reaction to the vile populism of politicians and their media supporters.

This is the media context of the tweet.

As this blog set out yesterday, the fragmentation of political parties and of the media enable knavish and foolish politicians an extensive reach for their culture war politics.

But it is not all one way.

The populists can be confronted and exposed.

The challenge for those who care for social justice and liberalism is to counter and oppose the illiberal populists on a sustainable basis.

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A further context is that Mings’ tweet undermines the attempts by the current government to evade responsibility for stoking the racism that manifested itself after England’s defeat – but is always present in our society.

This is the policy context of the tweet.

The government’s current ploy is to blame the social media companies with the threats, no doubt, of ‘tougher measures’ and perhaps even ‘crackdowns’.

But it is the ministers and their political and media supporters who derided as ‘gesture politics’ the direct moves by the footballers to show the watching supporters that racism was unacceptable.

Of course: social media companies need to take more responsibility – but they are conduits.

The footballers were instead confronting racism at its source – and government ministers mocked them for doing so.

Mings’ tweet exposed the emptiness and cynicism of the government’s political tactics.

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Any powerful political utterance will work on a number of levels.

But sometimes, that a statement has force in a number of contexts is an implication of someone having the courage and presence to say the right thing at the right time to the right person.

The implications and the contexts then take care of themselves.

The populism of illiberal politicians rarely have the substance and the effects of statements such as Mings.

It is almost as if the populism of the home secretary and others in the cabinet is the true ‘gesture politics’.

And they should remember that those who start culture wars can also lose them.

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When culture war combines with constitutional impotence: a warning from history

12th July 2021

The first time I heard about Otto von Bismarck was when I started my history A-level – until then I knew the name ‘Bismarck’ only as a name of a sunk battleship from world war two.

The first thing we learned about Bismarck the politician was that he launched a culture war – a Kulturkampf.

And the first things we learned about this Kulturkampf was that it created needless social divisions, that it was counter-productive and was quickly abandoned, and that Bismarck did not really have a sincere belief in any of it anyway.

Of course, what one gets to know from any A-level history course is often more simplistic than a more nuanced understanding that you can get from further reading and thought.

But this understanding of Bismarck and his Kulturkampf is more useful in understanding the policy of our current government than knowing the names of second world war battleships.

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At the time of my A-levels in the late 1980s, there was the political attack on the ‘loony left’ and then a decade or so later ‘political correctness’ was the target – ‘gone mad’ or otherwise – and now it is ‘deep woke’ or whatever.

And although from time to time this politics of nasty name-calling was translated into policy and law – for example, section 28 – it never seemed (at least to me, in my privileged state) the very essence of government policy until the current government.

Now there are a number of ministers who freely indulge in culture wars – playing like infants with matches.

A report published by the Fabian society today – of which I have only had a preliminary scan – offers a detailed analysis of the current culture wars and those who promote them:

These four summary bullet-points are especially plausible.

And the current configurations of media and politics seem to give each of these ‘peddlers’ more power than they may had before.

The decline in mainstream political parties as broad coalitions, moderating the extremes, means the grievance-mongers can rise quickly to political power – and that illiberal politicians can mobilise their illiberal bases directly and unashamedly.

(The political figures I remember from the late-1980s being the rent-a-quote members of parliament for ‘loony left’ hit-pieces – Beaumont-Dark, Dicks, Dickens – were all safely on the backbenches – now the quotes would come directly from the cabinet.)

The decline in traditional media as gatekeepers on who gets access to broadcasting and publication also mean that the perpetually outraged and the trolls have immediate and effectively limitless reach.

The grievance-mongers, the perpetually outraged and the trolls all existed (if with different labels) before the rise of the internet, but they did not perhaps have the easy access to media and political power.

A recent post on this blog averred that this political culture war has, in turn, constitutional – and constitutionalist – implications.

There is a reckless political belief that there are no constitutional rules or norms which are beyond being gamed for political advantage.

And when culture war combines with constitutional impotence then we have the politics of another German chancellor – you know, that one whose name you still do not need to have studied history to have heard of.

There is a worrying alignment of culture war and constitutional weakness, and unless one or both of these are addressed, it will not be difficult for knaves or fools to exploit their grim opportunity.

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So: will the policy nastiness soon stop?

11th July 2021

Politics is often cyclical.

One goes through a period of illiberalism – and the temptation is to project that into a dismal future of ever-increasing illiberalism.

And then: just as things seem to be inevitably getting worse, there is a swing back to liberalism.

There is a vice versa, of course: periods of self-congratulation and liberal complacency collapse into illiberalism.

Every 2012 London Olympics opening ceremony is not long followed by a Brexit vote.

The difficult – if not impossible – thing is to know the difference.

Are things getting better, or are they going to get worse?

The inclusive solidarity as signified by the current England football team, as complemented by the defeat of the governing party in recent by-elections, could mean that the illiberal tide has stopped advancing.

Hurrah!

Ot it could be a cause for false hopes.

Boo!

One day, historians will posit that whatever does happen next as having been inevitable all along – even though those of us here at the time can only see a range of possibilities.

But as the government keeps pushing forward with illiberal bills – policing, immigration, whatever – and infantile ministers play with the fires of culture war, there are still hopeful signs that the nastiness has not yet fully prevailed.

And, although politics may be cyclical, a great deal is still down to human agency.

The illiberals can be defeated again – and whether they are defeated or not may come down to political actions by liberals now.

There is a tendency sometimes for people to wrongly think things are all over, when there are still goals to be scored.

**

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Should ‘Lord of the Flies’ be the basis of school rules? Today’s #HotTopic

3rd July 2021

Over on Twitter, the educationalist and head teacher Katharine Birbalsingh set out in a thread her thinking about school rules.

So as to reduce the scope for any misrepresentation, here is the thread in full:

*

My immediate response to this earnest exposition was to tweet that it was priceless that a thread about academic standards started off by confusing Lord of the Flies with Lord of the Rings.

This was what would have been called in the days of the school standards urged, a ‘howler’.

And this howler prompted treasured memories of Alan Partridge’s Hot Topic:

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Caller:  ‘Well I enjoyed the Hobbit more than “Riverdance”. And I think that lots of boys on an island killing a fat boy is not so enjoyable as Gandalf, with a long white beard.’

Alan Partridge: ‘Okay, if you’ve just joined us, we’re talking about who is the best lord. “Lord of the Rings”, “of the Dance” or “of the Flies”. That’s tonight’s “hot topic”.’

*

Katharine Birbalsingh was not amused:

And so, as a courtesy, and with my immediate point having been made, I deleted my tweet.

*

But as a further recompense for my irksome tweet, I thought I should set out some thoughts about ‘rules’ – in schools and elsewhere.

After all, this is a blog about law and policy – and laws are rules, and education policy is a policy.

*

One important quality that rules should have is, as Katharine Birbalsingh avers, consistency.

But there are other important qualities.

Another important quality of rules is credibility.

If a rule seems daft – indeed absurd – then it will be difficult for the individuals affected to take the rule seriously.

And if a rule is not taken seriously, people will tend not to comply with the rule, and those charged with enforcing the rule will tend to avoid enforcing it.

So, for example:

‘But we don’t enforce silence or sitting up straight in society, so why in schools?’.

The reason why those rules would not be enforced in society is because they would be daft rules, and they would be derided.

There are enough problems in getting people to comply with the legal rules that do exist:

‘Our prisons are packed.’

*

Another important quality of rules is that they are proportionate and just – both in their nature and in their enforcement.

But a problem with strict rules – especially those with onerous sanctions – is that there can be no restraint on those enforcing the rules.

The enforcers become the bullies.

Power tends to corrupt, as some old liberal once said, and absolute power corrupts absolutely.

And so we come to the crux of Katharine Birbalsingh’s argument:

‘…the main thing that makes a school good or bad is its CULTURE.  And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.’

[Block capitals in the original.]

One way of thinking about this proposition is to replace the word ‘school’ with the word ‘society’:

‘…the main thing that makes a society good or bad is its CULTURE.  And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.’

In this recasting, you have what is the essence of illiberal totalitarianism.

Your rights are restricted, but it is only for your own good, and to protect you from the Other.

Given that the thread jumps from points about schools to those about society, it is not (I hope) unfair to set out this transposition, and its implications.

Back in the context of a school (or indeed any particular institution within society), the imposition and enforcement of strict rules can be the means by which the few (those who impose and enforce rules) can indeed ‘ruin it for the many’ (those who have to comply with those rules – or else).

Strictness as an end in and of itself can be as much a means of bullying of the ‘many’ as what the strictness purports to address.

*

Now we come to the hobgoblins on the beach.

The schoolchildren in Lord of the Flies.

These are the horrors – the marooned turnip-ghosts – from which we need to protect our children.

If adults do not step in, it will go all Lord of the Flies.

*

A good response to Katharine Birbalsingh’s point here is this tweet:

*

Lord of the Flies is one of those books about which anyone who knows of it will have an opinion about it.

And often that opinion will have been formed (or imposed) at school when it was a set text.

There is, of course, not one ultimately correct view of any literary text.

(This is where literature perhaps differs from law, where the conceit is that each legal text has an ultimate correct meaning – ho ho.)

In her thread, Katharine Birbalsingh was positing (or was intending to posit) the island in Lord of the Flies as the world of lawlessness – the anarchy, the chaos that every small-c conservative fears:

‘Because as society has laws, schools need order. Otherwise bullying/harassment. Lord of the [Flies].’

Of course, one of the places in our society which are nearest to the anti-ideal of this lawlessness, where bullying and harassment are rife are, well, prisons:

‘Our prisons are packed. We remove permanently those who won’t obey laws.’

And, other than a few dozen full-life sentence prisoners, the intention is that all convicts – over 80,000 of them – are to return to society after this experience of bullying and harassment.

*

The counter-argument to Katharine Birbalsingh’s thread is that the imposition and enforcement of strict rules as an end in themselves can become a means of the ‘bullying and harassment’ that she claims to want to avoid.

Or the rules may become discredited and thereby pointless.

The important qualities for any body of rules are consistency (on which she is right) but also credibility and proportionality.

Otherwise the rules become part of the problem, and not part of the solution.

Rules are crucial – and as a law and policy commentator, I would say that wouldn’t I, else I would have nothing to commentate on – but their strictness is not an important quality.

Credibility and fairness are far more important than strictness.

Rules are an essential means of moderating power relationships – and they prevent those with power from injuring or exploiting those without power.

The principle of the rule of law means that legal rules bind the mighty as well as the weak.

And so to function properly rules need to have legitimacy, and not just firmness.

For, when rules lose their legitimacy…

…it all goes a bit Lord of the Flies:

‘“We’ll have rules!” [Jack] cried excitedly. “Lots of rules! Then when anyone breaks ’em–”

[…]

‘Jack was the first to make himself heard. He had not got the conch and thus spoke against the rules; but nobody minded.

[…]

‘“The rules!” shouted Ralph.

‘“You’re breaking the rules!”

‘“Who cares?”’

Who indeed.

**

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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.

Comments will not be published if irksome.