Category: Policy and Policy-Making

The Illegal Migration Bill is about political theatre, not serious law-making

 7th March 2023

Today we were supposed to see the government’s new Illegal Migration Bill.

According to today’s Order Paper, the Bill was to be presented to Parliament:

A minister told peers that the Bill was to be introduced today:

And there was even a Commons statement by the Home Secretary.

But.

There is no Bill – at least by mid-afternoon today.

This is odd.

That there is a delay was indicated by part of the Home Secretary’s statement:

“Mr. Speaker, I won’t address the bill’s full legal complexities today.  Some of the nation’s finest legal minds have been – and continue to be – involved in its development.”

And why would the “nation’s finest legal minds” still be “developing” something which was supposed to be published today?

The ministerial letter above provides a possible explanation:

Section 19 of the Human Rights Act 1998 provides:

Nothing much of legal significance turns on section 19 statements either way – whether a minister views a Bill’s provisions as compatible or otherwise.

The lack of a compatibility statement will not make a statutory provision breach the ECHR, and the presence of a compatibility statement will not save a statutory provision from being found incompatible.

Section 19 is an ornament not an instrument.

Lord Hope in a 2001 House of Lords case said the following about one such statement of compatibility (emphasis added):

“It may be noted in passing that a statement of compatibility was attached to the Bill before second reading that its provisions were compatible with the Human Rights Act 1998. Statements to that effect are now required by section 19 of the Act, which was brought into force on 24 November 1998. But Mr Pannick QC for the Secretary of State did not seek to rely on this statement in the course of his argument. I consider that he was right not to do so. These statements may serve a useful purpose in Parliament. They may also be seen as part of the parliamentary history, indicating that it was not Parliament’s intention to cut across a Convention right […]  No doubt they are based on the best advice that is available. But they are no more than expressions of opinion by the minister.  They are not binding on the court, nor do they have any persuasive authority.“

That was just after the Human Rights Act was passed – but it is pretty much the conventional wisdom of the courts and practitioners on such statements.

Of course, ministers will want to assure waverers in the Commons and the Lords that this is not yet another piece of legislation which will break international legal obligations.

More concerning will be the substance of the Bill, which may face heavy amendment in the Lords and litigation in the Courts.

But we cannot know what the Bill says, as it has not been published.

What we do know, in addition to the Home Secretary’s statement (and ignoring the media briefing) is this from the Order Paper:

And this on the Home Office website:

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The emphasis on media briefing for this Bill indicates that these proposals are more to do with political theatre, not law-making.

For the one thing which would do the most to stem any abuses of our asylum regime would be to have an adequately resourced and competent asylum system.

And until and unless we have an adequately resourced and competent asylum system, then everything else proposed by this government on asylum is hogwash.

The impression this Bill gives is that the government is not engaged in serious policy making and legal implementation, and it wishes to use its remaining months in office to play to various galleries and to evade any blame.

And this can be done by leaks, briefings, announcements and press releases – again, political theatre – with any actual legislation an afterthought.

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STOP PRESS

The Bill has now been published.

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Why the appointment of Sue Gray is both a mistake and not a mistake

6th March 2023

The senior civil servant Sue Gray has been appointed by the leader of the opposition as his chief of staff.

This, as you no doubt are aware, is the stuff of political controversy – not least because of Gray’s famous (infamous?) role in compiling the Partygate internal report.

From a policy perspective, however, is this controversial appointment a mistake?

Tactically and politically the appointment is an error.

It raises questions of propriety and timing for the leader of the opposition, and it opens up the  question of whether her role in the Partygate report was politically motivated.

It also distracts from any focus on the wrongdoing of Boris Johnson over Partygate.

But.

Strategically and governmentally the appointment is sensible.

If the leader of the opposition becomes prime minister then he needs aides who (genuinely) know the Whitehall machine, who are used the glare of the media, and who are unafraid of speaking truth to power, or at least to Prime Ministers.

As such Gray’s appointment can be compared to that of Margaret Thatcher’s aides, the recently deceased Bernard Ingham and Charles Powell, and Tony Blair’s appointment of Jonathan Powell.

Such appointments are a mark of taking government and policy seriously.

The timing of the appointment is dreadful, and it may be politically counterproductive in March 2023, but it may look less problematic if Labour win the next general election.

And in the run up to the next election, it means the party (currently) most likely to win that election will have guidance which enable it to better prepare for the realities of implementing manifesto promises and translating policy into practice.

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Government departmental reorganisations are a form of magical thinking

7th February 2023

Today we were supposed to have had a ministerial reshuffle.

But there was little ministerial shuffling or reshuffling.

Instead we had yet another exercise in creating and renaming government departments.

In reality, not a great deal changes when this happens.  The same civil servants will sit in the same buildings doing much the same things.  The signage on the doors will change, new email addresses will be created, and somebody somewhere will get a lot of money for a rebranding exercise.

The belief seems to be that changing the name of a department – no doubt to something more “eye-catching” – is a thing that by itself means something significant.

Yet it is not even rearranging the deckchairs on the Titanic – it is more like changing the names on the back of the deckchairs.

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And sometimes, in the longer term, such reorganisations make things worse.

The creation of a “Ministry of Justice” – by combining what had once been the small Lord Chancellor’s Department overseeing the court system and the prisons part of the Home Office created a mid-sized spending department which, when austerity cuts were inflicted, meant that the court system became increasingly underfunded.

The supposed “synergies” from a “holistic” and “beginning-to-end” approach to the justice system never converted from management-speak waffle to hard policy implementation.

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At the start of Brexit you may recall the sudden creation of two pop-up departments: the Department for Exiting the European Union and the Department for International Trade.

Both must have seemed such really good ideas at the time.

But both were useless.

DExEU soon got dragged back into the Cabinet Office, which had a natural centre of gravity in Whitehall for the relevant negotiations.

The Department for International Trade had nothing to do for a couple of years, as trade deals could not be finalised and executed (and thereby meaningfully negotiated) until the United Kingdom actually left, and then the department spent its time doing what any business department (or foreign office) could have done with the rollover agreements and the few other opportunities.

Both were an exercise in pointlessness – as well as both illustrating the fundamental lack of understanding of the nature of Brexit by the then-government.

And from today the Department for International Trade is no more, even though we are now “free” to strike our own trade deals.

What a waste of time.

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Some wag once said that, in an office job, meetings are the practical alternative to work.

Similarly, reorganisations are often a manager’s practical alternative to, well, management.

It is perhaps not even worth learning the new departments’ names, and their acronyms, as soon they will change again, with little useful having been achieved in the meantime.

At least the Prime Minister will nod to himself as he thinks he has done something, while all around nothing substantial has changed.

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The Church of England seems more accountable on the floor of the House of Commons than most government ministers

26th January 2023

Now here is a curious thing.

The Church of England seems more accountable on the floor of the House of Commons than most government ministers.

This week there was an urgent question about the position of the Church of England on same-sex marriages.

And as in England, we have an established church there is a member of parliament charged with answering questions on behalf of the Church of England – from the backbenches:

In contrast to this exercise in parliamentary accountability, we have this week had the Prime Minister refer the Zadawi tax matter to the ethics adviser and the BBC mount an internal investigation into the relationship of its chair with a former Prime Minister.

This is in addition to the King’s Counsel looking at allegations against the Lord Chancellor.

There are various other inquiries and investigations, some now almost-forgotten.

And the thing is about these inquiries and investigations is that they are often exercises in political deflection and delay – deft manoeuvres so that there is no actual practical accountability of ministers, at least not immediately.

The consequence is that we are now in the extraordinary situation where the bishops of the Church of England are generally more accountable to members of parliament than the ministers of the crown.

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A look at Keir Starmer’s proposal for a “Taking Back Control” Bill

5th January 2023

Today the leader of the main opposition party in the United Kingdom gave a speech.

You can read a version of Keir Starmer’s speech on the Labour party website.

One part of it which seems possibly interesting from a legal perspective is a proposal for a “Taking Back Control” Bill.

This is what the speech said:

“So we will embrace the Take Back Control message. But we’ll turn it from a slogan to a solution. From a catchphrase into change. We will spread control out of Westminster. Devolve new powers over employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances.

“And we’ll give communities a new right to request powers which go beyond this.

“All this will be in a new “Take Back Control” Bill – a centrepiece of our first King’s speech. A Bill that will deliver on the demand for a new Britain. A new approach to politics and democracy. A new approach to growth and our economy.”

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This call for de-centralisation and devolution will face the two fundamental problems every such call has faced since the nineteenth century.

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The first problem for de-centralisation and devolution is the doctrine of the supremacy of the Westminster parliament.

This doctrine, which in good part was a Victorian innovation not known to earlier jurists, tells that all legislative power in our polity rests with the Crown-in-Parliament.

This means that no other body in the United Kingdom can legislate other than to the extent permitted by the Westminster parliament.

Recently this doctrine was illustrated by the Supreme Court decision on a reference by Scotland’s Lord Advocate.

In effect, the Scottish parliament is merely another statutory corporation, subject to the rule of ultra vires.

The Westminster parliament will not easily forego this legislative supremacy and – if we adhere to the doctrine of parliamentary supremacy – it may be impossible for the Westminster parliament to do so.

This means that any de-centralisation and devolution is at the Westminster parliament’s command: Westminster can grant this seeing autonomy, and Westminster can easily take it away.

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What we do have are numerous devolution and local government statutes, all defining and limiting what various authorities can and cannot do.

There is no real autonomy – even for the Scottish parliament.

No ability to do things despite what the Westminster parliament would like an authority to do.

Ambitious projects by local authorities – such as when the Victorian town of Birmingham (not even yet a city) went and bought and operated its own gas and water industries – would be impossible now.

That is real de-centralisation and devolution – doing things the centre cannot stop.

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The second problem for de-centralisation and devolution is in respect of policy and administration, rather than law.

It is the sheer dominance of HM Treasury in Whitehall and the public sector more generally.

For example, HM Treasury has a monopoly in respect of almost all fiscal and financial – that is, tax-raising and borrowing – powers.

(Even the Scottish parliament has limited autonomy to vary income tax rates and the Scottish government power to borrow money.)

And no public body has complete fiscal autonomy – and, indeed, many public bodies rely on central government for grants and financing.

It is unlikely that Whitehall will happily allow regional authorities and devolved administrations absolute power to raise taxes and borrow money.

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And now back to the word “control”.

Unless regional authorities and devolved administrations have absolute power to raise taxes and borrow money, or to make rules and mount ambitions problems, then they do not have “control”.

Instead, “control” will stay – as it always does – with Westminster and Whitehall.

Westminster and Whitehall can extend the leash, but they can pull the leash back.

That is not “control”.

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Looking more closely at Starmer’s speech, it is not clear to whom this “control” is to be actually given.

Consider the following passages (emphases added):

“…the Britain that Labour can build. A fairer, greener, more dynamic country with an economy that works for everyone, not just those at the top. And a politics which trusts communities with the power to control their destiny.”

“Giving communities the chance to control their economic destiny. The argument is devastatingly simple.”

“It’s not unreasonable for us to recognise the desire for communities to stand on their own feet. It’s what Take Back Control meant. The control people want is control over their lives and their community.”

“We need to turbo-charge this potential, but Westminster can’t do that on its own, it can only do it with communities. That’s why Labour will give them the trust. The power. And the control.”

And so on.

There is noting specific here as to who will get this supposed “control”.

Will it be existing local authorities or new regional bodies?

Will it be new legal entities smaller than existing councils?

And – most importantly if this really is about “control” – what will happen if those “communities” want to do something which Westminster and Whitehall do not want them to do?

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Starmer did list some of the topics where there could be devolution of powers: “employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances”.

But devolution is not granting “control”, as there will be limits to what even the most ambitious local authority will be able to do in the face of any opposition from Westminster and Whitehall.

And there is also a respectable argument – which you may or may not endorse – than on issues such as transport and housing, there needs to be far less local autonomy, not more, so for us as to escape the ongoing blight of NIMBYism.

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Starmer insisted in his speech that the “Take Back Control” will be turned from “a slogan to a solution”.

And it we missed the import of that rhetorical turn, Starmer then said it will be turned from “a catchphrase into change”.

(This is reminiscent of his predecessor Tony Blair’s wonderful statement once that “[a] day like today is not a day for soundbites, we can leave those at home, but I feel the hand of history upon our shoulder with respect to this, I really do.”)

But there is nothing in this speech which does go beyond slogans and catchphrases.

There is no substance to the supposed “controls” which are to be given “back”.

And there is nothing specific as to whom or what those “controls” are to be given.

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You may have Very Strong Opinions on de-centralisation and devolution.

You may welcome Starmer’s speech as a good and welcome signal of change.

You may oppose it as it may mean impediments to policies which may need to be directed at the national level.

But what one cannot say is that it tells us much, if anything, about how de-centralisation and devolution is to work in practice.

And it says nothing about how – at least in England – local authorities can break free from the real controls of Westminster and Whitehall.

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We are not only in the age of easy answers but also in the age of easy-to-avoid questions

28th November 2022

Somebody over on Twitter thoughtfully dug up something I wrote back in 2017:

I think the piece – which links Brexit with the Iraq invasion and other follies – holds up well.

But I also now think the problem identified is only part of the problem.

This because “easy answers” are only possible when hard questions are easily evaded.

For example, one of the most depressing features of contemporary political discourse is the frequency of answers that begin with “I will take no lectures from…”, “I give no apologies for…”, “what people want to know is…”, “what the public expects is….”, and, of course, “let me be absolutely clear….”.

These non-answers render almost all political interviews – and many parliamentary questions – pointless.

Few questions can land, and accountability is brushed off.

And what is most depressing: those watching and listening do not seem to care.

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This blog has previously averred that the problem is not so much that politicians lie but that voters do not seem to care about being lied to.

And so, until and unless voters care about being lied to, then politicians will get away with their dishonesty.

Similarly, until and unless voters care about politicians not answering questions, then politicians will get away with their evasions.

Often this is not the fault of the interviewer or other questioner.

There are some cracking questions asked of politicians.

But there are not many cracking answers.

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There is a fundamental disconnect about accountability in our politics.

At law, of course, a witness will be under pain of perjury.

(And the professional advocate asking the questions will be under their own rules about what questions can be properly put.)

There is an attractive notion that ministers, for example, should also be put under pain of perjury for their answers.

Attractive – but misguided.

The solution to the failure of accountability in parliament is not, in my view, to make parliament more like a court.

It is to make those in and watching Parliament care more about the standard of answers.

As it stands, neither the Speaker nor anyone else is personally responsible for ensuring that questions are properly answered in Parliament.

Instead, as with the investigation into Boris Johnson, it is left to a committee some months later to make a determination or not.

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Rather than some paper reforms or legislative changes, it is the culture of Parliament which is most urgently in need of reform.

Members of Parliament, on both sides of the House of Commons, need to care more about the answers they are given, and to be less tolerant of evasions – even if the questions are from political opponents.

For when questions have purchase – where questions cannot be deflected – then non-answers and easy answers have no hiding place.

Politicians showing leadership on this matter makes it more likely that the public will come to care more about what they are told – and what they are not told.

And that is the real answer to the hard question of how political accountability and scrutiny is made more effective.

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Removing all the European Union law in the United Kingdom may be a practical process on which the sun will never set

8th November 2022

Back in August 2016, a month-or-two after the Brexit referendum, I wrote the following at the Evening Standard:

“So extensive are the EU ties which bind the UK that they take at least a political generation to untangle. Gus O’Donnell, the former head of the UK civil service, has pointed out that it took Greenland, with a population less than Croydon and with only the issue of fish, three years to leave the old EEC. And in the Eighties the EEC was a far less complicated entity than the modern EU.

“Thousands of UK laws — nobody knows exactly how many — are based on EU law. Many of these laws only have effect because of the European Communities Act, which would need repeal or substantial amendment. Some of the laws have effect without any UK-implementing measure.”

The phrase I want to emphasise here is “nobody knows how many”.

Six years later, still nobody knows how many laws of the United Kingdom are based on the law of the European Union.

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This situation has to come to prominence because of the daft notion of the current government that somehow all the laws of the United Kingdom are based on the law of the European Union can be identified and replaced at speed.

The entire exercise is ludicrous, as well as probably impossible.

The idea can only have been conceived by someone with no real idea of how entangled domestic and European Union law was by 2016 (or 2019-2020, when we actually departed in practice).

It is not a question of simply going to a database and using the right search terms – say to find all the regulations made under section 2 of the European Communities Act 1972.

Even with those regulations many were revoked or amended other regulations –  so that, without considerable time, you would never know the full extent of the entanglement.

Regulations were also made under other statutes, and much European Union law took effect without needing any local enactment at all.

And the important thing to note is that at the time – 1973 to 2016 – nobody ever thought the whole thing would need to disentangled, and so nobody thought to keep any track of it.

This is why, with the hurried departure of the United Kingdom after the referendum, the whole problem was kicked into the the future with the notion of “retained European Union law”.

Such a disentanglement could not be done at speed before departure, and for the same reason the disentanglement cannot be quickly done now.

It matters not that some politician confidently asserts that “something needs to be done” by some artificial “sunset” date.

And to the surprise of nobody who knows about European Union law, entire tranches of European Union law are still being found:

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It will take a long time – perhaps decades, perhaps never – to unwind all the European Union law that had effect in the United Kingdom and replace or revoke it.

That is not a pro- or anti- Brexit statement, but the simple fact of the matter.

Some of these laws were championed by the United Kingdom when a member state of the European Union.

Some of the laws were hard-fought triumphs by United Kingdom ministers and officials.

Some of the laws are good and beneficial, and some are not good and need removing.

But this can only be done on a slow, methodical law-by-law basis.

As I averred back in August 2016: it may take at least a political generation.

The moment this is realised and accepted by the current government then we may be moving into a practical rather than an ideological understanding of our post-Brexit predicament.

That realisation, however, may itself take a political generation.

It is even likely to be a process on which the sun will never set.

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What does the Home Secretary mean by “taking legal advice into account”?

All Souls Day, 2022

What does it mean for a home secretary to “take legal advice into account”?

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This question is prompted by statements by the home secretary to the House of Commons in respect of the escalating problems at the Manston asylum processing centre.

On Monday she told members of parliament:

“…I have never ignored legal advice.

“As a former Attorney General, I know the importance of taking legal advice into account.

“At every point, I have worked hard to find alternative accommodation to relieve the pressure at Manston.”

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So whatever “taking legal advice into account” means, it does not – for her – mean “ignor[ing]” that advice.

The home secretary herself makes that distinction and juxtaposition.

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The home secretary also said in her prepared statement:

“As Members will be aware, we need to meet our statutory duties around detention, and fulfil legal duties to provide accommodation for those who would otherwise be destitute.

“We also have a duty to the wider public to ensure that anyone who has entered our country illegally undergoes essential security checks and is not, with no fixed abode, immediately free to wander around local communities.”

Note that “also”.

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Those quotations are from her prepared statement, but in response to an opposition question she then also stated:

“I have not ignored or dismissed any legal advice with which I have been provided.

“I cannot go into the details of that legal advice because of the Law Officers’ convention.

“That is part of the decision-making process that all Ministers go through.

“We have to take into account our legal duties not to leave people destitute; I have to take into account the fact that I do not want to prematurely release hundreds of migrants into the Kent community; I have to take into account value for money; I have to take into account fairness for the British taxpayer.”

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Again the distinction is made with ignoring advice, but you will also see that taking into account legal advice is now set against other (competing?) things for her to take into account: “the fact that I do not want to prematurely release hundreds of migrants into the Kent community; I have to take into account value for money; I have to take into account fairness for the British taxpayer.”

These factors are presented as being alongside – and perhaps of at least equal importance to – “tak[ing] into account our legal duties not to leave people destitute”.

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The home secretary in another reply said:

“I confirm that I have not ever ignored legal advice.

“The Law Officers’ convention, which I still take seriously, means that I will not comment on the contents of legal advice that I may have seen.

“What I will say is this: I am not prepared to release migrants prematurely into the local community in Kent to no fixed abode.

“That, to me, is an unacceptable option.”

The impression one gets from this further reply is that her not being “prepared to release migrants prematurely into the local community in Kent to no fixed abode” is not merely a factor to consider alongside any legal advice, but is actually the determining factor.

She seems to see that as the “unacceptable option” to which all other factors presumably, including legal advice, must yield.

If so, this accords with the “also” passage in her prepared statement.

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On Sunday, the day before that commons statement, the well-connected political journalists at the Sunday Times reported:

“Suella Braverman has been accused of failing to act on legal advice that the government was illegally detaining thousands of asylum seekers. The move could cost taxpayers an expensive court action.

“The home secretary received advice at least three weeks ago warning that migrants were being detained for unlawfully long periods at the Manston asylum processing centre in Ramsgate, Kent. According to five sources, Braverman, 42, was also told that the legal breach needed to be resolved urgently by rehousing the asylum seekers in alternative accommodation.

“Two sources said she was also warned by officials that the Home Office had no chance of defending a legal challenge and the matter could also result in a public inquiry if exposed.

“A government source said: “The government is likely to be JR’d [judicially reviewed] and it’s likely that all of them would be granted asylum, so it’s going to achieve the exact opposite of what she wants. These people could also launch a class action against us and cost the taxpayer millions.””

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On Hallowe’en, ITN reported this further information:

If this ITN report is correct – and it is certainly plausible – this would explain why so many home office “sources” are aware of this issue.

As this blog has mentioned before, it is a significant but not unknown step to go to the Treasury Devil – James Eadie, the government’s senior external legal adviser – for an opinion, especially before any actual litigation.

(You may recall that the Devil was invoked in another matter involving the current home secretary when she was attorney general.)

For the Devil to be invoked and for the advice just to come back as reinforcing the internal home office advice would have been rather the setback for the home secretary.

It would have meant that not only did she have advice before her which was unwanted from internal lawyers, but that the unwelcome advice had been upheld by the most senior external lawyer available to the government.

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If so, what is a home secretary to do?

One thing a home secretary can do is to comply with legal advice,

That is what is expected by the ministerial code and, indeed, by the principle of the rule of law.

Of course, there will be situations – especially in respect of exercises of discretion in individual cases – where legal views may legitimately differ, and so a minister can take a view in respect of litigation risk.

But that latitude is not there in respect of compliance with general statutory duties.

The only option with a statutory duty for a government department is to comply with that duty.

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Now we go back to what the home secretary said, and what she did not say.

The home secretary said that she did not “ignore” legal advice.

And the home secretary said that she took legal advice and legal obligations “into account”.

But the home secretary has not said – expressly – that she complied with the legal advice.

If the home secretary had complied with the legal advice she could simply say “I have complied with the legal advice”.

But she has chosen not to do so, and has used what seems to be evasive wording instead.

The most plausible explanation for this is that she has not complied with the legal advice.

Given the nature of statutory duties, it is not clear how this can be done.

They tend to be legally binary: you either comply or you do not comply.

They are not an item in a basket with other items.

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In the house of commons today, an opposition politician said:

“The Prime Minister promised integrity, professionalism and accountability in Government. His Home Secretary has leaked information, is overseeing chaos in the Home Office and has broken the law. What will she actually have to do to get the sack?”

[An earlier version of this post wrongly attributed this quote to the leader of the opposition. This was not the case, and I have amended this post accordingly. I apologise for this error.]

She would not have said “broken the law” lightly.

Perhaps she was referring to something else (and please let me know in the comments below if you think that was the case) but the impression I formed was that she was referring to the Manston situation.

The leader of the opposition then asked the prime minister:

“Did the Home Secretary receive legal advice that she should move people out—yes or no?”

When this question was not directly answered, he then said:

“I think the answer to the question of whether the Home Secretary received legal advice to move people out of Manston is yes.”

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Presumably the legal advice to which the leader of the opposition was referring is the same legal advice which was provided by the Devil and internal legal advisers.

If so, then it seems that that the home secretary has placed a non-legal factor above compliance with the law.

She has decided that the non-legal factor prevails.

In doing so, the home secretary presumably thinks that this weighing exercise means that she has not “ignored” the legal obligation.

Instead, she has seemingly given less weight to that factor than to another factor.

If this interpretation is correct then it accords what she told the house of commons on Monday and it also accords with what the home office “sources” are saying to reporters.

I cannot think of any other interpretation that accords better with the available information.

(If you can, please do set it out below.)

The problem with this position would be that the relevant legal obligations are not just another item in a basket.

Instead, it is the breaking of those legal obligations that should be the “unacceptable option” to any home secretary, and indeed to any minister or official.

But this home secretary appears to think there is an option that trumps such compliance.

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For the reasons set out above, it seems that the home secretary was advised to comply with the law and she has chosen not to do so, maintaining that “taking account” of the law in such a situation is somehow not to “ignore” the law.

That would be a remarkable position for the home secretary to adopt and, if so, one would expect the courts to take a different view if the matter is actually litigated.

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A close reading of Suella Braverman’s account of her unauthorised email

All Saints’ Day, 2022

On Wednesday 19 October 2022, at 4.55pm, the then (and now again) home secretary Suella Braverman tweeted her resignation:

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The resignation letter contained the following passage:

“Earlier today [ie, the Wednesday], I sent an official document from my personal email to a trusted parliamentary colleague as part of policy engagement, and with the aim of garnering support for government policy on migration.

“This constitutes a technical infringement of the rules.

“As you know, the document was a draft Written Ministerial Statement about migration, due for publication imminently.

“Much of it had already been briefed to MPs.

“Nevertheless it is right for me to go.

“As soon as I realised my mistake, I rapidly reported this on official channels, and informed the Cabinet Secretary.”

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Those sentences largely speak for themselves and so do not need much of a gloss.

But do note that last sentence: “As soon as I realised my mistake, I rapidly reported”.

Not just “as soon as I realised” but also “rapidly reported”.

Read that sentence carefully.

The image that the author of that letter wishes to convey here is striking: the author acted quickly, and by the author’s own initiative.

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Now let us turn to another text by the same author.

This is the further letter sent by the author, this time to the Home Affairs Select Committee yesterday.

You can read this letter in HTML and in pdf.

This further letter is longer than the first letter, at six pages with a one page appendix.

Pleasingly it has numbered paragraphs, which rather makes it look like a court pleading or statement of case, but also makes it easier to navigate our way around – and so where relevant I will refer to the relevant paragraphs in brackets as [Para (x)].

Now let us have a close look.

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We are not told the reason for this letter: it seems not to be a letter that has been requested by the Committee or required by any provision or resolution.

It appears thereby to be a volunteered and unsolicited account of the circumstances of the resignation – and this is reinforced in the letter:

“Given the level of speculation about the sequence of events that led to my resignation, including several inaccuracies, herewith is a detailed account about the circumstances of my resignation. I know how important the issues being raised are, and that is why I want to be fully transparent with Parliament and specifically with your Committee.” [Para 3]

As there was no request or requirement for creating and publishing this text, it is not clear what the motivation is for the creation and publishing of the text.

One possibility is that it is an attempt by the home secretary to frame and spin certain content of the letter that may come into the public domain by some other means.

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Contained in this further letter is the following information about what was emailed.

The letter tells us about a written ministerial statement to be laid in parliament on the Thursday (the day after the email and then the resignation). [Para 4]

The letter also tells us that the statement was connected to the Office of Budget Responsibility forecast in respect of the then expected fiscal statement on 31 October 2022, and this indicates the possibility of the statement having some market sensitivity. [Para 4]

On the Tuesday (the day before the email and the resignation) the statement was a four-page document in near-final form. [Para 5]

The statement, we are told, “contained high level policy on illegal migration and legal migration proposals” and that it “consisted of high-level proposals for liberalising our migration rules under the Points Based System for workers, for example increasing the number of low-skilled foreign workers, as well as general plans for controlling illegal migration”. [Para 6 and 8]

(The hyphen comes and goes for “high level” and “high-level” for some reason.)

We are not told the statement’s security classification, though we are assured it was not “SECRET” or “TOP SECRET”. [Para 7]

We are also told that the statement did not contain “any information relating to national security, the intelligence agencies, cyber security or law enforcement. It did not contain details of any particular case work. It did not contain any market-sensitive data as all the data contained in the document was already in the public domain.” [Para 7]

That last sentence is curiously worded.

It is carefully limited to “data”.

If there was nothing in the statement which was market sensitive then the obvious thing to say would be to say there was no information which was market sensitive.

The author could have then just added “market sensitive” to the information listed in the preceding sentences.

But the author chose not to do this.

There are many kinds of market-sensitive information other than data – for example, how the data was to be used and what models or assumptions were to be employed.

But the denial is limited carefully to “data”.

We can only wonder why.

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The draft statement was incomplete.

There were “some sentences which had not been fully agreed by all departments” and there was to be a meeting at 1pm that Wednesday of the relevant sub-committee that was to agree a final version. [Paras 6 and 9]

Given the mention of the Office for Budget Responsibility, one of the departments would presumably have been the Treasury.

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At 7.25am the author used her personal email address to email the draft incomplete statement to the government backbench member of parliament John Hayes. [Para 12]

The covering message was:

“Dear John, What do you think? I’ll need to take a view this morning by 10am.” [Para 12]

What did he think of what?

Presumably the request was for his thoughts on the proposed amendments in the text from other departments, as he would know from previous briefings the position of the author.

This would accord with the 10am deadline, which would allow the author time to consider Hayes’ views in advance of the 1pm cabinet committee meeting.

We are then told about how the email was sent with an unintended recipient:

“I addressed it to Sir John’s parliamentary email and intended to copy his secretary’s parliamentary email address. However, I entered the incorrect email address for his secretary unintentionally and unknowingly.” [Para 12]

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Hayes did not reply by 10am, but somebody else did.

This unexpected reply was at 8:34am:

“‘This has been sent to me in error.’ I did not recognise the person who had sent this message, but noted that it was from a parliamentary email address with a similar name to Sir John’s secretary.” [Para 14]

The author then tells us that at “before or around 10am” she saw this 8:34am message from the unintended recipient.

The “before” here is vague.

Nonetheless, “[t]his was the moment that I realised that I had made a mistake by sending it to an unintended recipient.”

When was that moment?

The “before” could mean any time between 8:34 and 10am.

And what did the author decide to do?

Two things.

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First, the author sent an email at 10:02 to this stranger:

“Please can you delete the message and ignore. Thanks”.

Note that at this point the author says she does not know the recipient – just that it is someone with a similar name to the intended recipient.

Note also the author does not ask the recipient to confirm deletion, and just leaves it with it with a mere “Thanks”.

Perhaps she thought that was which was needed, and that is all that would come of it.

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The second thing we are told the author decides to do is “that I would inform my officials as soon as practicable”.

This term “as soon as practicable” is also vague.

But whatever it means it does not mean promptly or immediately, or indeed “rapidly”.

As it happens, the author does not seem to inform her officials for quite some time.

This is even though she is, on her own account, located at the Home Office. [Para 17-18]

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At 11:31am, the Chief Whip sends a WhatsApp message to the author asking her to speak to Andrew Percy, the member of parliament to whose assistant the email had been unintentionally sent.

The author tells us she did not see this message at the time.

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At 11:33am Percy emailed the author as follows:

“Suella

“I am really not sure that government documents should be being shared with members of your former campaign team via gmail.

“Can you tell me what the Ministerial Code says on this and what the processes are in the Home Office for the sharing of sensitive government documents via gmail.

“Simply asking my team to delete this email and ignore it is not an acceptable response to what appears, on the face of it, to be a potentially serious breach of security.

“I am considering a point of order on this issue and have raised it with the Chief Whip.

“I hope an explanation will be forthcoming. You are nominally in charge of the security of this nation, we have received many warnings even as lowly backbenchers about cyber security.

“Andrew Percy.”

The author claims not to have seen this Percy email at the time, and the Percy email is only quoted later in the letter which gives an impression that it was a later development.

Indeed, both the Chief Whip’s message and the Percy email are deftly inserted in this further letter outside of the strict chronology of the day’s events, and so it is not obvious on first reading how early in the day’s events they had been sent.

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By 11.50am there is no indication that the author has informed her officials when she encounters the Chief Whip and Percy. [Para 19]

We are then told of a coincidence.

“At 11.50 in Members’ Lobby, and by coincidence, I saw the Chief Whip and Andrew Percy MP. The Chief Whip asked me to speak to Mr Percy MP. He told me that my email had been received by a member of his parliamentary staff. He was concerned about my having sent the email to Sir John and to his staff member.” [Para 19]

She then gives an apology (to which we will return), but there is still no indication that she had informed her officials.

This is now nearly two hours after her “Thanks” email and three-and-a-half hours after the 8.35am email alerting her to the mistake.

On her own account, it is only at this point she knows who the email was sent to – for at 10:02 she had not known who the recipient was and assumed that whoever they were they would just delete it as requested (without confirmation).

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It is now noon:

“At midday I decided that I would not attend PMQs as planned, so that I could take action regarding my mistake. I returned to my parliamentary office. This was the first opportunity I had had to communicate in full what had happened.” [Para 21]

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The “in full” here is doing a lot of lifting.

The author had been at the Home Office by her own admission between 10am and 11.20am.

Some communication with her officials would have been possible after the 8.34am email or the 10.02 email.

And who does she “communicate in full” to?

Her Private Secretary?

No.

Her Permanent Secretary?

No.

The Cabinet Secretary?

No.

It is to her Special Adviser (a political appointee), and not her Private Secretary or her department’s Permanent Secretary, or the Cabinet Secretary.

We are then told:

“There, I explained the above chronology to my Special Adviser and asked him to phone my Private Secretary immediately.” [Para 23]

She does not herself tell the Private Secretary directly, for some reason.

“I asked [my Special Adviser] to inform my Private Secretary of the chain of events set out above and make clear that I wanted to fully report the breach and follow official processes. I wanted official advice on what I needed to do next. This included any reviews that were deemed appropriate by senior civil servants.” [Para 23]

She does not herself tell the Private Secretary of the chain of events, for some reason.

We are then told it is only after she has asked her Special Adviser to tell the Private Secretary that she reads the Percy email of 11:33am. [Para 23]

And then we are told that it only after seeing the Percy email that she saw the Chief Whip’s message of 11:31am. [Para 24]

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Back to the Special Adviser being asked to inform the Private Secretary:

“Immediately after being told, my Private Secretary discussed the issue with the Permanent Secretary, and with his agreement then flagged the issue on my behalf to the Prime Minister’s Private Office and the Cabinet Secretary’s Private Office. This was the first time the Prime Minister’s Private Office or the Cabinet Secretary’s Office had been informed. As a result of my actions, the Cabinet Secretary was told for the first time. Separately, and unbeknownst to me at the time, the Chief Whip had also notified the Prime Minister of this issue. This was not known to me until after these events.”

There are two very interesting turns of phrase here.

The “Immediately” implies promptness.

And the “As a result of my actions” suggests that she was directly responsible for the Prime Minister’s private office and Cabinet Secretary’s office being informed, when in fact it had gone as follows: Author > Special Adviser > Private Secretary > Permanent Secretary > Cabinet Secretary.

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It is now almost 1pm on the Wednesday.

The original email had been sent at 7.25am; the email from the unintended recipient was at 8.34am; the thanks-and-please-delete email had been sent by her to a stranger at 10:02am; the Chief Whip’s message had been at 11:31am; Percy’s email had been at 11:33am; and the meeting with the Chief Whip and Percy had been at 11:50am.

But on the author’s own account, she still has not spoken or otherwise communicated directly with any Home Office officials (as opposed to her own Special Adviser) about the matter.

And then:

“At 12.56 and 12.57, I emailed all of the relevant emails to my Private Secretary as part of my referral to officials.” [Para 27]

There is no reason given why this did not happen before.

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Ministers are busy people, and they can be swamped with information and communications.

And so nothing in the above should be taken to mean that the author is not being accurate as to when she actually saw messages.

Indeed, this post is set out on the basis of the author being accurate in what she says in the further letter.

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But.

If we go back to the author’s resignation letter, we see the following:

“As soon as I realised my mistake, I rapidly reported this on official channels, and informed the Cabinet Secretary.”

This statement is not consistent with what the author said in the further letter.

If we accept that the 8.33am email was not seen at the time, the mistake was realised “before or about” 10am.

Her Special Adviser was not asked until after noon to contact officials , and there was no direct contact with officials until almost 1pm.

If her further letter is correct, then “[a]s soon as I realised my mistake, I rapidly reported this on official channels” cannot also be correct.

The author also did not inform the Cabinet Secretary.

On her own account, it was: Author > Special Adviser > Private Secretary > Permanent Secretary > Cabinet Secretary.

Yet the normal and natural meaning of “[a]s soon as I realised my mistake, I rapidly reported this on official channels, and informed the Cabinet Secretary” is that the author herself directly informed the Cabinet Secretary.

This was not the case, if her account in the further letter is correct.

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For completeness, the further letter also states:

“Following my referral and subsequent resignation, the Home Office conducted a review of my use of personal email and verified the above sequence of events. The review also identified that within the period between 6 September and 19 October, I had sent official documents from my government email to my personal email address on six occasions.”

Note: six.

Note also that it is not said that she only sent official documents to her personal email six times, but only that six occasions have been “identified”.

It would have been easier just to say that author only did this six times, but this other form of words was chosen instead.

Those six occasions would have been in addition to the incident described above.

We are also not told how many times those official documents had been forwarded.

And note the dates: there may have been, on the face of this wording, other occasions in her other government roles, outside of those specified dates.

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At the meeting with the Chief Whip and Percy, the author says she said:

“I apologised and said that this was the first time that I had used my personal email to send an official Home Office document to someone outside government, that there was no risk to security due to the content, and that I would ensure that this would never happen again.” [Para 19]

Note: “first time”.

The appendix to the letter lists six times the author had forwarded emails from her official email to her personal email:

The 19 October incident above is not one of these, because the relevant draft statement was forwarded to her from her Special Adviser.

If what the author says what she assured the Chief Whip and Percy is correct, then the position would be that not one of these six documents was then forwarded.

We must also assume that none of the times official documents were forwarded to her by her Special Adviser (such as above) that they were not also sent outside of government.

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The letter of 31 October 2022 from the home secretary to the chair of the Home Affairs Select Committee is carefully drafted and, as with any carefully drafted document, rewards careful attention.

There are turns of phrase and framing of information in that letter that could give an impression different to that which would be gained from a close reading.

But a close reading shows that the portion of the resignation letter that says “[a]s soon as I realised my mistake, I rapidly reported this on official channels, and informed the Cabinet Secretary” cannot be correct.

The further letter raises more questions than provides answers.

Either her resignation letter is correct or this further letter is correct.

But not both.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

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The Home Secretary, the Home Office, and “statutory duties”

Hallowe’en, 2022

The uses made of certain law-related phrases in political discourse can be fascinating.

Take the current political row about the treatment of asylum seekers in Manston.

It appears from news reports that the current home secretary Suella Braverman and/or the previous home secretary Priti Patel failed to ensure there was sufficient accommodation for asylum seekers.

This failure was, in turn, a breach of the law – and, it is alleged, that this breach of the law was knowingly made.

In essence, the accusation is that the home secretary was told what the law was and the home secretary chose not to comply with that law.

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I do not know – and I suspect you do not know – the truth of the matter (at least not yet).

But the language in which the accusations are framed is interesting.

This is not, it seems, about human rights gone mad or “woke” or both.

It is not about a minister “taking a view” on the risk of there being a successful challenge, either by an application for judicial review or otherwise.

It is not thereby about an area of law with “grey areas” or “fuzzy edges” or whatever evasive language one can get away with.

No.

This row is about good-old, old-fashioned, domestic law “statutory duties”.

That is the sort of binary law in respect of which you either comply or do not comply.

It is not the sort of law in respect of which, for example, you take a view on whether you have acted “proportionately” or not in a particular case, and in respect of which you guess (ahem, forecast) how a court will deal with a challenge.

Where the law provides binary “statutory duties”, a government department (and indeed anyone else, including you) should not “take a view”.

You comply.

Simple as that.

The Act of Parliament says you should do [x], and so you do [x] – else you are in breach of your duty to do [x].

It is therefore not open to Braverman or any other partisan to ignore the law on the basis that it is about woke human rights and assert that the courts will strike the wrong balance for proportionality.

And this is why, in part, I think this row has reached the public domain.

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This is not about exercises of discretion in individual cases, where the home secretary or relevant official can take one view or another on a case-by-case basis.

This is wholesale non-compliance.

That is why I think officials are more jumpy than they otherwise would be.

This is not a decision to interfere with right in individual cases, but an apparent decision to disregard entire legal rules.

Perhaps the relevant home secretary did not realise or care for the distinction.

Perhaps the disdain for “individual case” human rights law has tripped over to disdain for the general rules of legal compliance with statutory duties.

Who knows.

But we have got to a point where even Home Office officials – Home Office officials! – are sufficiently alarmed by a home secretary’s proposals to disregard the law that they are contacting and briefing journalists.

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First it was individual human rights, and now it is general statutory duties.

Once you start making exceptions to the rule of law, those exceptions become wider and more troubling.

Brace, brace.

 

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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 and comments will not be published if irksome.

The comments policy is here.