Category: Policy and Policy-Making

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.

*

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:

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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:

*

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.’

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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.

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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.

https://www.youtube.com/watch?v=3jFqhjaGh30

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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.

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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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The recent two by-election defeats for the governing party and their implications for law and policy

2nd July 2021

This is not a party partisan blog and there are good and bad in all mainstream parties (though some parties have more good than others).

But it is a liberal constitutionalist blog, and so the two recent defeats for the governing party are a good thing: the politics of inclusion and solidarity seem (just about) to have defeated the politics of exclusion and division.

The fragile coalition that bought the current government to power in December 2019 – in effect, to ‘get Brexit done’ and to ensure that the then leader of the opposition did not become prime minister – may turn out to be unsustainable.

So what?

This is of interest to those with strong feelings about party politics – but are there any implications for law and policy, from a non-partisan perspective?

Perhaps.

One of the features of the illiberalism of the current government seems to be a belief that constitutional and cultural conflict ‘play well’.

So you have the sight of infantile government ministers picking fights and attempting to provoke ‘culture wars’.

And you have the loud trumpeting of attempts to further dislocate constitutional arrangements – with the executive seeking to undermine the checks and balances provided by the courts, the legislature, the impartial  civil service and diplomatic corps, and so.

Each attack intended to impress and mobilise the minority electoral base that is believed to be sufficient to keep this illiberal government in power.

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But it seems not to be working any more.

The lever may have come loose.

If this is the case – if – then there are two possible things that may happen: bad and good.

The bad thing would be that government ministers and their supporters want more illiberalism!

More division and exclusion!

More constitutional conflict and culture war!

Or, a good thing: government ministers and their supporters may come to their senses as they realise the diminishing political returns for their illiberal (and vile) confrontational politics.

Any sensible person would hope for the latter.

But nobody who has followed politics since 2016 could be confident that such a welcome development will occur.

So it all could get worse.

Brace, brace.

**

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Five Unchecks and Imbalances – a catalogue of Boris Johnson’s ongoing assault on constitutionalism

29th June 2021

Every so often someone posts or tweets a succinct summary of the direness of a predicament.

And yesterday the Guardian live blog managed to put all the following into a single blog update:

None of these are a check or balance in the classic constitutional sense, such as the judiciary or parliament as a whole (though, of course, the speaker is one of the five).

And if only one of these example were sidelines, one could dismiss it as part of the rough tumbles of practical politics.

But taking all five together, there is a trend that should concern anyone – apart from the hyper-partisan supporters of the government.

Each example tells of the lack of constitutional self-restraint that that is the stuff of constitutionalism.

(Constitutionalism being the view that there are political rules and norms that have priority over partisan advantage.)

And these five examples are in addition to the disregard the prime minister has to the checks and balances in the classic constitutional sense: the judiciary, parliament, the independent civil service and diplomatic corps.

This is not – yet – a constitutional crisis, for as the two Miller cases and the Benn Act show, it is still possible for other elements of the constitution to ultimately assert themselves.

But is certainly all part of an ongoing assault on constitutionalism.

**

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Whatever happened to the concept of ‘maladministration’?

28th June 2021

The recent report from the independent panel on Daniel Morgan used the concept of ‘institutional corruption’ – and on this you can see my Financial Times video here and my post here.

But the deployment of such a term makes one think of other terms that come and go in law and policy – and one such term is ‘maladministration’.

It is an odd term – it does not quite mean ‘illegal’ or ‘unlawful’ and so it does not fit into the neat binary of what is called ‘public law’ – the law that regulates what public bodies can and cannot do.

In principle, it would appear that a thing is capable of being maladministration without it also necessarily being unlawful – either as a matter of public law or as an instance of misconduct/misfeasance in public office.

The notion is that maladministration goes to the thing being complained of having an administrative remedy – rather than a judicial remedy.

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The term ‘maladministration’ is used in English law, see section 5(1)(a) of the Parliamentary Commissioner Act 1967 that established the office known as the ‘ombudsman’ (emphasis added):

‘[the ombudsman] may investigate any action […] to which this Act applies, being action taken in the exercise of administrative functions of that department or authority, in any case where […] a member of the public […] claims to have sustained injustice in consequence of maladministration in connection with the action so taken […].’

The act, however, does not define ‘maladministration’ – and all one can glean from the provision quoted is that the term is something to do with the performance of an administrative function.

In R v Local Commissioner for Administration for the North and East Area of England, ex p Bradford Metropolitan City Council (1979), the court of appeal averred that ‘maladministration’ had an open-ended meaning, covering ‘bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on’.

This is a broad definition.

In 1993 the ombudsman said that ‘maladministration’ included an ‘unwillingness to treat the complainant as a person with rights; refusal to answer reasonable questions; knowingly giving advice which is misleading or inadequate; offering no redress or manifestly disproportionate redress; and partiality’.

These are serious things  – indeed these can even constitute criminal offences.

*

Given the breadth of the definition of ‘maladministration’, and the seriousness of what it can cover, it is strange that we do not have more use of the word in the public discussion of failures in the public sector.

For example, the Guardian and the Financial Times each seem to have used the word only twice in respect of United Kingdom matters in 2021.

And this is despite ‘maladministration’ being a term recognised at law and for which parliament has provided a scheme for administrative remedies.

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Why do we hear so little of the term ‘maladministration’?

The reason cannot be that there is no maladministration – from the post office scandal and the Daniel Morgan report to the problems to do with Covid procurements and the exams fiasco, maladministration, like love and Christmas, is all around.

At least the failures that are covered by the word ‘maladministration’ are all around.

*

So these leaves two possibilities.

Either: the system of administrative remedies is working so well that that the maladministration that does take place is quickly remedied and the complaints resolved.

Or: the system of administrative remedies is not working, and so complainants are having to resort to public law and other means for their complaints to be addressed.

If the latter, this could mean that the reason we hear so little of the word ‘maladministration’ is that is not a practically useful term.

And if that is the case – that the reason we hear so little of the term ‘maladministration’ is that it is not practically useful – then why would that be the case, when parliament has set up an elaborate (and expensive) ombudsman scheme to deal with ‘maladministration’?

Given the ombudsman scheme – formally known as the the parliamentary commissioner for administration – and given the sheer amount of public sector failings, one would expect that the term ‘maladministration’ would be a commonplace in law and policy discussions.

But it hardly features.

So: is the real reason we hear so little of the term ‘maladministration’ in United Kingdom law and policy that the scheme of  (to use the ombudsman’s full title) is not working?

Some posts coming up on this blog are going to find out.

**

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Is there a business case in existence for the announced ‘National Flagship’?

23rd June 2021

When the proposed new national flagship was announced, there were a number of odd things about the announcement.

(Please see this earlier post on this blog, especially the many highly informed and insightful comments beneath.)

One thing which seemed especially odd was that it was announced by the prime minister’s office – and the only mention of the royal navy or of the ministry of defence was that navy would crew the boat.

There was no mention – explicitly – of which government department would pay the procurement/commissioning of the ship – nor of which government department would be responsible for its envisaged thirty years of maintenance and repair.

As a former central government public procurement lawyer, this seemed strange.

The announcement seemed, well, just flimsy – the shallowest of press releases.

Since then it has become obvious why the announcement was so flimsy.

The reason is that the thinking behind the announcement also has been flimsy – if it can be characterised as thinking at all.

*

As the Sunday Times has now reported:

‘The Cabinet Office, which was originally asked to devise the plans, the Department for International Trade, which was originally expected to benefit from them, and the Ministry of Defence, which has now been saddled with the project, are all in the dark about where the money is coming from, not least because the MoD is fighting to plug a £16 billion black hole in its annual budget.

[…]

“‘Another official confirmed: “The royal yacht is a complete and utter shitshow. When it was first floated, the PM wanted it to be built in Britain. It was given to [Cabinet Office minister Michael] Gove to sort out, but it became clear that under procurement rules it could only be built here if it was a navy thing with a bunch of fake weapons on board. So Gove passed it on to the MoD. The Treasury stayed out of it.’

None of this is a surprise; indeed, all of this can be inferred just from a close critical reading of the original announcement.

Anybody with even the most basic awareness of public procurement would realise that if this was a civil (non-military) project, there could be no legal restrictions as to which tenderers would be considered.

*

Now the Guardian is reporting:

‘Downing Street has backed down from insisting that the Ministry of Defence should foot the whole bill for new royal yacht Britannia in a Whitehall row about the funding of the £200m vessel.

[…]

‘The Ministry of Defence (MoD) is resisting being lumbered with the cost of the project at a time when it is trying to fill a £16bn backlog in its equipment budget.

‘On Monday, Downing Street indicated that the yacht would be paid for out of the defence budget, with a spokesperson saying: “The procurement process, which is being done through the MoD, will reflect its wide-ranging use and so it will be funded through the MoD.”

[…]

‘No 10 then clarified on Tuesday that the MoD would initially only pay for the procurement process, and that the rest of the costs has not been allocated.

‘A Downing Street spokesperson said: “This is a ship that will promote UK trade and drive investment back into our country. So we expect any costs of building and operating the ship will be outweighed by the economic benefits that it brings over its 30-year lifespan.”’

*

This is what public policy-making and decision-making looks like when it is made up as it goes along.

The most plausible explanation is that nobody in government has a clue about how to go about the procurement exercise for this boat.

I am not a lobby journalist – and so I can add not other telling quotes from insiders, but I can add something.

Prompted by the announcement, I thought I would make a freedom of information request.

I made the request to the cabinet office, on the understanding that the cabinet office was the department responsible for that announcement of national flagship – and that was also the department that would deal with freedom of information requests for the prime minister’s office.

And today came the response to the request.

The cabinet office does not possess a business case for the national flagship – even though it was the department that announced it.

This odd situation can perhaps be explained as follows, either:

– there is a business case held in Downing Street, but my request clumsily missed it;

– there is a business case held in Downing Street, but the cabinet office has given me false information;

– there is a business case for this announced procurement, but it is held in another government department and has not been shared with the prime minister’s office or the cabinet office; or

– there is no business case, despite the public announcement.

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What we do know is that a business case should always precede a procurement exercise – and so the fact that a government department may then handle the procurement exercise does not mean that the business case is then created.

That would be to put the dinghy before the boat.

Business cases precede procurement exercises – and should determine whether there is a procurement exercise or not.

The reasonable suspicion of anyone following this daft exercise is that there is no business case – and that this prestige procurement was announced without any preliminary thought whatsoever.

And now the government cannot back down.

And this is how £200 million (at least) is to be spent by the government.

*

POSTSCRIPT

I have now found this fascinating parliamentary answer – there appears to be no ‘assessment’, only ‘discussions’.

I have set out further information from answers to parliamentary questions in this thread:

https://twitter.com/davidallengreen/status/1407756269394481154

**

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The Accountability Gap and the State of the United Kingdom

19th June 2021

Here is a challenge.

Think of a normal, day-to-day process of the United Kingdom state.

And then try to think of examples when that process has succeeded in holding the state accountable – that is against the government’s wishes.

It is not easy.

Freedom of information is impotent.

The public services ombudsman is inefficient (at best).

Debates on the floor of the house of commons – and ‘opposition days’ – provide little more than Westminster theatre.

The prime minister casually lies at the weekly set-piece of political accountability, without any sanction or shame.

Written parliamentary questions take an age to be answered – and the answers given are often useless.

Government press offices are expensive exercises in not providing any help other than to the careers of those who staff them.

The only exception is that, from time to time, a parliamentary select committee can publish a report that hits through – though this often is down to the capabilities and qualities of whichever clerks work for the committee, than to the MPs and peers which formally comprise the committee’s membership.

And so because the normal processes of the state are generally so weak that we end up with ad hoc processes such as inquires and court cases to force the state into accounting for its actions (and inactions) against its will.

Think here of the post office scandal litigation, and think of the Hillsborough and Daniel Morgan panels.

And there are other examples.

(And imagine how many examples there are where there have not been such determined campaigners dedicated in getting at the truth.)

Ad hoc exercises in practical accountability such as court cases and panel inquiries are, however, often undermined (as this blog averred yesterday) by a legal inability to force disclosure against the state’s will or interests.

And each success in forcing accountability by means of a court case or an inquiry usually has equal and opposite significance as an example of failure of the institutions of the state to have held other parts of the state properly accountable in the first place.

In particular: the failure of parliament to be an effective check on the executive.

There is a severe accountability gap in the state of the United Kingdom.

And it is from this gap so many other political problems emerge.

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Garbage In, Garbage out – how ‘disclosure’ failures undermine inquiries

18th June 2021

Techies have a phrase for it: ‘garbage in, garbage out’.

Or GIGO, for short.

What this means, of course, is that the quality of the outputs of any given process are determined by the quality of the inputs.

This basic, rather obvious point is often missed by those who demand ‘inquiries’ into all sorts of apparent state failures.

The emphasis is often placed on it being ‘judge-led’ or whatnot – that is, the form that the inquiry should take.

But this is to prioritise form over substance.

And this is because any inquiry – and indeed any formal decision-making process such as a trial – is only as good as the information to which it has access.

If you control the flow of information to an inquiry (or trial) you then have significant control over the outcome.

In particular, if you control what information the inquiry does not get – even though that information is relevant and available – then you, in effect, neuter the inquiry.

This is why any duty of disclosure is a crucial element in respect of any inquiry.

If the police (in the examples of the Hillsborough inquiry and the Daniel Morgan independent panel) or the post office (in respect of the horizon scandal) deny documents exist, or refuse to give access to information, or simply refuse to disclose incriminating or embarrassing evidence, then the inquiry will be undermined.

And this is regardless of the qualities of the judges or other heads of the inquiry, or the scope and eloquence of the terms of reference, or the public interest in the matter.

GIGO.

And any entity that faces criticism or embarrassment – or even criminal liability – will not willingly disclose evidence which can be used against it.

Nor will the individuals that comprise those entities.

They will hire specialist lawyers, skilled and experienced in ‘managing’ disclosure – who will ensure the interests of their clients are protected without any law being actually broken.

All of this should not be any surprise.

And so why the obligations of disclosure are perhaps the most important thing to get right if you want any inquiry to be of any use.

Not who is the judge or on the panel, or what the terms of reference are, and so on.

Let the inquiry get the evidence that matters.

Otherwise: GIGO.

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