Category: Policy and Policy-Making

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.

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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.

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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.

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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.

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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.”’

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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.

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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:

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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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Judicial review, Dominic Cummings and ‘Potemkin paper trails’ – and why courts require reasons for certain decisions

11th June 2021

In three tweets in a thread posted this week, Dominic Cummings, the former assistant to the prime minister, refers to ‘Potemkin’ paper trails and meetings.

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What does he mean?

And does he have a point?

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What he is alluding to, of course, are the ‘Potemkin’ villages, where things in bad conditions were dressed up to be in good conditions so as to mislead others.

In the context of judicial review, Cummings presumably does not mean that bad reasons would be dressed up as good reasons.

What he instead intends to mean is that there could be artificial reasons and contrived meetings the purpose of which was to make a decision judge-proof.

To a certain extent, he has a point.

In the judicial review case in question, had there been evidence of officials conducting any form of evaluation exercise then the tender award may have been harder to attack legally.

And such an exercise could, in reality, have been nothing other than going through the motions rather than anything that could have actually led to another agency actually getting this valuable contract.

But this is not the reason the courts require reasons for certain decisions – and it may not have changed the judgment in this case either.

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Judges and courts are not stupid and naive.

Judges and courts know full well reasons can be artificial and contrived.

The judges were once barristers and solicitors and, as such, they would have had considerable experience of advising clients on providing reasons for certain decisions. 

The purpose of requiring reasons for decisions – and for ministers and officials to say they are true reasons – is to make it more difficult for bad and false decisions to be made.

For example – take the decision by the government to seek a prorogation of parliament in 2019.

No minister or official – or adviser – was willing to sign a witness statement (under pain of perjury) as to the true reason for advising the Queen to prorogue parliament.

And without such a sworn (or affirmed) reason, the government lost the case.

Reasons also provide a reviewing court with a basis of assessing whether a decision was so unreasonable that no reasonable decision could have made it, and also of assessing whether relevant considerations had been included and irrelevant considerations were excluded.

Providing reasons does not provide an escape route for cynical and irrelevant and unreasonable decision-making.

But it is an impediment, and one that makes it harder for ministers and officials to get away with bad decision-making. 

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And in the recent judicial review, it is not clear to me (as a former central government procurement lawyer) that even an artificial ‘Potemkin’ exercise would have necessarily saved the decision from legal attack.

Awarding a high-value contract to cronies where a nominal (though documented)  exercise of discretion had not shown any actual objective advantage over other possible suppliers would still have been open to legal attack.

So this is not necessarily a case where the failure to provide a ‘Potemkin’ paper trail is to blame for the loss of a legal case.

The pram may well have fallen down the stairs anyway.

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Why is it so difficult to prosecute for the sale and purchase of peerages?

7th June 2021

A person is in the news because they donated £500,000 to a political party days after taking a seat in the house of lords.

This post is not about that person.

I have no idea about the circumstances of that appointment. and so I do not make any allegations in respect of those circumstances – and this is not just safe libel-speak, I genuinely do not know, and nor (I suspect) do you.

(And anyone commenting below who makes an allegation of criminality in respect of that appointment – or anyone else – will not have their comments published – this is not Twitter, you know.)

This post is instead about the legislation that is usually mentioned when such appointments are made: the Honours (Prevention of Abuses) Act 1925.

It is a curious statute – not least because the offences it creates appear hardly to have ever been successfully prosecuted.

(The one early exception appears to be Maundy Gregory.)

 

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The legislation has one substantive clause that in turn creates two offences.

The first offence is (and in language itself as cumbersome as the name, title and style of any obscure peerage):

‘If any person accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, or for any purpose, any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour.’

Let’s try to make sense of this word-soup.

This first offence relates to the person who is (in effect) on the supply-side of a relevant transaction – the person ‘accepting or obtaining’ the ‘inducement or reward’.

This supplier has to be shown to (a) accept, (b) obtain, (c) agree to accept, or (d) attempt to obtain [x] in return for [y].

The [x], in turn comprises two things: (a) any gift, money or valuable consideration which also has the quality (b) of being an inducement or reward for procuring or assisting or endeavouring to procure the grant of [y].

This means proof of a ‘gift, money or valuable consideration’ is not enough: there also needs to be proof of its purpose.

The [y] is the most straightforward: ‘the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant’.

What all this means is that showing there is cash and an appointment is not enough: there has to be proof of intention to the criminal standard of proof – that is (in general terms) beyond reasonable doubt.

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The second offence deals with (in effect) the demand-side:

‘If any person gives, or agrees or proposes to give, or offers to any person any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour.’

There is no need to unpack this like the first offence – but you will notice that again there is the need to prove that the ‘gift, money or valuable consideration’ is for the purpose of bing an inducement or a reward.

So, as before, showing there is cash and an appointment is not enough – there needs to be proof of intention.

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Those with good political memories will recall the ‘cash for honours’ investigation of 2006-2007.

This investigation included the extraordinary moment of a dawn-raid on the home of a government official and the questioning by the police of the then prime minister.

All very dramatic.

But nothing came of it.

No charges were brought.

The Crown Prosecution Service provided detailed, legalistic reasons for their decision not to prosecute.

The CPS averred that not only did it need to prove intention (on both sides) but also that it also had to prove that there was an agreement:

‘If one person makes an offer, etc, in the hope or expectation of being granted an honour, or in the belief that it might put him/her in a more favourable position when nominations are subsequently being considered, that does not of itself constitute an offence. Conversely, if one person grants, etc, an honour to another in recognition of (in effect, as a reward for) the fact that that other has made a gift, etc, that does not of itself constitute an offence. For a case to proceed, the prosecution must have a realistic prospect of being able to prove that the two people agreed that the gift, etc, was in exchange for an honour.’

These CPS reasons were compiled and endorsed by some very clever criminal lawyers – though the rest of us may struggle to see the absolute need for proving an agreement under the 1925 Act.

Nonetheless the CPS insisted:

‘In essence, the conduct which the 1925 Act makes criminal is the agreement, or the offer, to buy and sell dignities or titles of honour. Section 1(1) is drafted in wide terms and captures any agreement in which a seller agrees to procure a peerage in return for money or other valuable consideration. Section 1(2) is also drafted in wide terms and captures any agreement in which a buyer agrees to provide money or other valuable consideration, in order to induce a seller to procure a peerage.’

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If the CPS are correct in this interpretation and construction of the statutory offences, then this makes it hard, if not impossible, for the offence ever to be prosecuted successfully.

And, even without the CPS gloss, the requirement to show intention made the offence hard to prosecute in the first place.

There may be other laws which may apply – for example, fraud legislation – but not the one piece of legislation that actually has the sale of honours as its dedicated purpose.

For, as long as those involved make sure there is no paper-trail and that the choreography of nods-and-winks are done in the right order, there is no real danger of any prosecution under the 1925 Act.

What the 1925 Act prevents is the blatant Lloyd-George style of an open market for the sale and purchase of honours.

For a statute to only regulate (in effect) the seemliness of the trade in peerages and other titles is a very, well, British (or English) thing to do.

Otherwise, the 1925 Act is an ornament, not an instrument – and so it is as much a mere constitutional decoration as any ermine robe, and is just as much use.

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The Prime Minister’s disregard for rules-based regimes

6th June 2021

This is just a short post today – more of a signpost – to point you towards an interesting and thought-provoking post by Hannah White at the Institute of Government.

Her post brings together various examples of the contempt in which the current prime minister holds a range of rule-based regimes – showing that for Boris Johnson, to echo Leona Helmsley’s supposed words, rules appear to be for little people.

There are, of course, a number of problems with the prime minister’s approach.

For example, a great deal of the constitution of the United Kingdom is based on self-restraint and convention – and, although many prime ministers have breached constitutional norms, none have done so as openly and unapologetically as the current prime minister.

Another problem is that – especially at the time of this pandemic and also as the United Kingdom adjusts to its post-Brexit future – there will be a need for various rules to be followed as well as made.

And it is difficult to insist on others keeping to the rules when the head of the government himself sees compliance with rules as, at best, optional.

And perhaps the biggest problem is that there is a sense of checks and balances simply not mattering any more – a further move towards a central command polity.

Of course, in our present day hyper partisan political culture, few will care about such things.

The constitution of the United Kingdom is now, essentially, whatever Boris Johnson can get away with.

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