Category: Policy and Policy-Making

Partygate and parliament: law and policy, tactics and strategy, privileges and penalties

21st April 2022

Well.

Those were an interesting few days in parliament.

We went from a government bullishly seeking to block the prime minister being investigated by the powerful committee on privileges, to supporting the opposition motion.

This government cannot even get political gangsterism right.

Great credit here should go to the opposition parties.

Faced with a law-breaking prime minister who has said – on any view – incorrect things to parliament about the facts relevant to that law-breaking, the opposition could have gone for censure motion, or a confidence motion, or a contempt motion.

And had the opposition done so, it would have been defeated – perhaps on a whipped vote.

But instead the Labour leadership put forward a motion to which no sensible member of parliament could object, and the motion even said any consideration by the privileges committee should await the end of the Metropolitan police investigation.

And the Labour chair of the privileges committee – who had been vocal in his disdain of the prime minister on this issue – said he would recuse himself, thereby removing another possible objection.

Against this tactical savviness, the government position collapsed.

First there was to be an amendment: but that went.

Then the vote was to be unwhipped: and that went.

And in the end, there was not even a vote.

The motion went through on the nod.

Let’s just think about that.

A motion of the house of commons that a sitting prime minister should be investigated by the privileges committee in respect of four statements he made in the house about the circumstances of that law breaking went through – and not a single member of parliament opposed it.

Of course: asking for an investigation is one thing – and the committee may well not find the prime minister in contempt.

But – in and of itself – that such a motion should go through without any objection is remarkable.

One reason for the opposition’s tactical success is that Conservative members of parliament do not want another situation like with Owen Paterson – where they were whipped to frustrate a report, only for the position to be reversed in front of their eyes.

Another reason is that – as this blog has previously averred – a parliamentary majority is no barrier to Nemesis following Hubris.

Other prime ministers in command of working majorities have been brought down before between elections – Thatcher, Blair – and so there is no reason this one cannot be either.

A privileges committee investigation is a serious matter, as they have the power to recommend suspensions from the house.

Another investigation – following the Sue Gray and metropolitan investigations – will also keep this issue alive – and that is, no doubt, the strategic goal of the opposition.

The constitutional Wednesday Addams in any of us can only smile at all of this not going away.

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What is happening here is – in effect – a parliamentary stress-test, an anxious examination of our constitutional arrangements.

What do you do with a law-breaking prime minister who has misled the house of commons?

Can this be checked and balanced?

The answer to this should not be a civil servant’s report – however independently minded the civil servant.

Nor should it be a decision by the police to issue a penalty, or not.

It is – rightly – a matter for parliament.

And this week’s deft parliamentary footwork by Labour and the other opposition parties has ensured that there will be a parliamentary answer to this particular parliamentary question.

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Along with Fake News and Fake Law, we have Fake Policy

20th April 2022

A ‘policy’ can be understood as a means to an end.

In a political context, a policy is the means by which various elements of the state can be used to achieve an outcome that would not be achieved, but for that policy.

Those elements can be ‘hard’ – for example, the use of legal prohibitions or coercive sanctions.

And other elements can be ‘soft’ – such as budget allocation and funding, administrative priority, the issuing of guidance, or the exercise of leadership.

But whatever combination of elements, the usual notion is that a policy is there to do something in practical terms – to have an ‘in real life’ (IRL) effect.

And then…

…and then we have the ‘policies’ of our current home secretary.

Of course, the home secretary is not the only minister to make announcements of policies which were not really intended to ever have effect, so as to ‘play well’ with the media or voters.

But it is difficult to think of a politician so adept at promoting such fake policies.

Take the Rwanda proposal (which has already featured on this blog).

A moment’s thought will indicate to any sensible person that the policy makes no sense IRL.

For example: that the proposal is for only some but not all of the asylum seekers to be transported onto Rwanda does not and cannot ‘break’ any ‘business model’.

The traffickers will instead just adjust their model so as to focus on those who are less likely to be moved on.

This is a point so bleedingly obvious that even the former home secretary and prime minister Theresa May – who promoted the vile ‘hostile environment’ policy – can see that it will not work.

Even Theresa May.

But.

The Rwanda proposal is not being promoted because it will work – or is capable of working.

The home secretary even admitted in formal correspondence published on the government’s own website that there is no evidence that the policy will work to deter anyone.

The proposal is there as a thing in itself – to rally illiberal supporters and ‘to own the libs’.

In the event this policy ever gets implemented, this fake quality will still be true as to its essence.

It is not a policy in any practical or meaningful sense – it is a signal.

And signals something positive or negative, depending on one’s values.

The publicity, like the cruelty, is the point.

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What is SLAPP?

22nd March 2022

Sometimes I give blogposts the wrong titles.

Yesterday, the post here had the title: Is there a SLAPP problem in the English courts?

This is a good – and urgent – question.

The problem was that the post did not answer the question, and instead it set out some preliminary views about SLAPP – that is an acronym for ‘strategic litigation against public participation’.

What I should have done before setting out these preliminary views was to explain SLAPP – and I am sorry I did not do so.

Some people even told me on Twitter that they had to google ‘SLAPP’ so as to understand my post.

This post seeks to remedy the deficiency of yesterday’s post.

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SLAPP is a term to describe the misuse of the litigation process for the purpose of minimising or eliminating public and media scrutiny.

It is an American term and it appears to date from 1996.

There have been, in turn, various anti-SLAPP laws in America.

The reason why SLAPP is now seen as an issue here is a spate of illiberal legal claims brought (or threatened) in the High Court in London which appear to have the ulterior motive of minimising or eliminating public and media scrutiny – in particular scrutiny of various oligarchs and foreign corporations.

The United Kingdom government has just announced that it is considering introducing anti-SLAPP laws here and it has put out the a call for evidence on SLAPP.

The government describes SLAPP as follows:

“The term SLAPPs is commonly used to describe activity that aims to discourage public criticism through an improper use of the legal system. SLAPPs have two key features:

• They target acts of public participation. Public participation can include academic research, journalism and whistle-blowing activity concerned with matters of societal importance, such as illicit finance or corruption.

• They aim to prevent information in the public interest from being published. This can be by threatening or bringing proceedings which often feature excessive claims.”

Another word for this phenomenon is the splendid portmanteau ‘lawfare’.

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Now that I have set out a defintion of the term, do have another look at yesterday’s post – which I have now re-titled.

You will see that I aver that although SLAPP is a pejorative and contested term, it is also a useful term as long as you bear its limitations in mind.

In further posts on this blog I am going to look at some recent cases that have been described as SLAPP cases so as to answer the following questions:

1. Is there really a SLAPP problem in the English courts?

2. If so, what is the nature of that problem?

3. And if it is a problem, is it a problem capable of being solved?

I think it is important to ground any consideration of reform in an understanding of actual examples, else one can end up with a mismatch between proposals and problems.

For such a mismatch is what happened, in my view, with the campaign which led to the Defamation Act 2013, where the eventual legislation that was passed would have done little or nothing in respect of the various poster-cases on which the campaign relied.

(With my old Jack of Kent blog I was part of the early part of that campaign for libel reform, though I had and have concerns about the law that was finally enacted.)

Whether there is an actual SLAPP problem and, if so, whether it can be solved is a key issue for our legal system and how that system impacts on public debate.

I would like this blog – with its posts and excellent commenters – to be part of informing the debate on that issue.

I am sorry my post yesterday was running before it was walking – and I hope this further post has put that right.

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Can the period of the current Ombudsman be lawfully extended?

18th March 2022

One of the areas of focus of this blog is what I call the ‘accountability gap’ – that is the lack of genuine accountability in the arrangements of United Kingdom government and public administration.

And one element of this accountability gap is the problem of the ‘Ombudsman’ – the Parliamentary Commissioner for Public Administration.

This is a strange and fairly obscure office and it exists to deal with what is – from a legal perspective – a strange and elusive thing: ‘maladministration’.

(My post on the obscurity of the office is here and my post on the vague concept of maladministration is here.)

It is also an office that is not without its critics – as this link demonstrates.

Part of the problem with the Ombudsman seems to me to be structural – the relevant legislation provides a strange mix of strong powers and a weak sense of purpose.

But some of the problem may be operational – that the PHSO (as it is now known) does not operate as well as it could do, even with its curious legal regime.

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The current Ombudsman has just had his term of office extended – and, as you can imagine, this has not been received well by the critics of the Ombudsman.

The extension is for a further period of two years, which will take his term in office to 2024.

One may doubt whether such an extension is wise – and the recent extension of office of the now-departing Metropolitan police commissioner comes to mind as an unwise extension of office.

I have been, however, asked to look at whether the extension is unlawful.

Here we need to look at section 1 of the Parliamentary Commissioner Act 1967:

We also need to look at last week’s press release:

Curiously there seems no trace on the website of the Cabinet Office of the confirmation, or on the website of the parliamentary committee of such a recommendation – but let us assume that the confirmation and recommendation both actually happened.

And by way of background, the current Ombudsman was appointed in April 2017, and was widely reported that the original appointment was for a five-year term (which must be correct, else there would be no need for an extension).

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So, looking at section 1, what can we ascertain?

Section 1(2A) provides that the Ombudsman is shall hold office until the end of the period for which he or she is appointed.

On the face of it, that would mean the current Ombudsman’s term comes to an end next month, for that was the position of the original appointment.

Section 1(3B) provides that a person cannot be ‘re-appointed’ as Ombudsman.

So if the extension was a re-appointment that would be unlawful under section 1(3B).

And section 1(2B) provides that the period of appointment shall not be no more than seven years in total.

That provision means that if the current Ombudsman served beyond April 2024 then that would certainly be unlawful.

What is not clear on the face of the legislation is what the legal position is if an office holder has an extension beyond his or her original appointment, as long as that extension does not mean more than seven years in total are served.

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In practical terms, it could be argued that by extending the appointment before it expired, then the appointment is simply continuing.

It can also be argued that section 1(2A) does not say or necessarily imply that that an Ombudsman cannot hold office after the period for which he or she is appointed – section 1(2A) only says that they must hold the office until the end of the appointment.

On balance, I think that although the position is not clear, the extension does not look to be unlawful.

Nothing in section 1 expressly prohibits such an extension.

Had section 1(2B) said that the period of appointment shall never be longer than the duration of the original appointment, then such an extension would be unlawful.

But section 1(2B) does not say that – it instead expressly states that the duration should not exceed seven years.

And because there is this express long-stop, I do not think a court would easily imply into the Act an even shorter long-stop as a matter of law.

I also do not think the court would see the extension as a ‘re-appointment’, as it is a continuation of an existing appointment and not the start of a fresh term of office.

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Public law is full of these situations where the legal position is not clear – and it may be that my analysis above is incorrect – and you are welcome to put forward your view below.

But the fact that the extension is (probably) legal does not necessarily mean that it is a good decision.

What may be a legal thing to do is not always the right thing to do.

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The United Kingdom government is rushing through anti-oligarch legislation without proper scrutiny

7th March 2022

Imagine a serious piece of proposed legislation, for serious times.

Imagine that legislation is substantial – a Bill of 64 pages.

Imagine that legislation is complex – 55 clauses and 5 schedules (the latter comprising 11 parts).

Imagine that legislation is coercive – creating at least 12 new criminal offences.

Imagine that legislation confers wide executive powers – with 20 “may by regulations” provisions for Secretary of State to legislate by fiat, including in respect of individual rights.

And now…

…imagine that proposed legislation being forced through all its stages in the House of Commons in a single day.

What could possibly go wrong?

Well.

We will now find out, for this is what is happening today with the Economic Crime (Transparency and Enforcement) Bill.

This significant legislation is being rushed through with almost no opportunity for adequate scrutiny by Members of Parliament – just so the government can be seen be doing something about Oligarchs.

This is not how fundamental legislation should be put in place.

 

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The invasion of Ukraine – autocracy, democracy, constitutionalism and rationalism

25th February 2022

There are two common errors in politics and human conflict.

One is to believe your opponents are caricatures – to assume that they are not rational.

The other is to believe there must be some reason in what your opponents do – to assume that they are actioning rationally.

The problem is knowing when you are making these errors in any given situation.

Take Putin, for example.

Some think he is currently being rational:

While others think he is unhinged:

At an early stage of this conflict, I saw some merit in the view that Putin was rationally acting to set up a ‘frozen conflict’ – as he had done in Georgia and Moldova:

But while that may have explained the initial parts of the current conflict, it does not explain the escalation to a full invasion.

And so we do not know whether (and, if so, how) what Putin is doing is rational – and whether there is any way to comprehend why Putin is acting in this way.

But what we do know is that this conduct – rational or otherwise – flows from Putin as an autocrat.

This is evidently his policy – and not one that is being pushed on him by others – and there is nobody in the Russian polity with any formal power to check him.

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Over at the outstanding Comment is Freed blog, the doyen of war and strategic studies Lawrence Freedman sets out what we know and do not know so far about the invasion.

It is exemplary commentary on an unfolding (and, for us, confusing) event and it is worth reading for its own sake.

But there is one passage that is worth considering on this here law and policy blog:

“At times in democracies we lament the flabbiness, incoherence, short-sightedness and inertia of our decision-making, compared with autocrats who can outsmart us by thinking long-term and then taking bold steps without any need to convince a sceptical public, listen to critics, or be held back by such awkward constraints as the rule of law.

“Putin reminds us that that autocracy can lead to great errors, and while democracy by no means precludes us making our own mistakes, it at least allows us opportunities to move swiftly to new leaders and new policies when that happens.

“Would that this now happens to Russia.”

The great thing about checks and balances (when they work) is that, well, they check and they balance.

In the United Kingdom, for example, prime ministers as different as Asquith, Chamberlain, Churchill and Thatcher have all been removed from office at a time of international tension or war.

Effective checks and balances mean that those with political power can always be prevented from exercising their power – and even removed from power.

And this accountability tends to improve the quality of policy and decision making.

As Freedman avers, in a democracy there are the means by which leaders can be replaced and policies changed.

In Russia – whether Putin is rational or not, and whether his policy is rational or not – there are no formal mechanisms by which Putin can feasibly be replaced or his policy halted.

So it does not matter much whether he and his policy are rational – whether there is some grand plan.

He is going to (try to) do what he wants anyway.

And so we come to the ultimate check and balance that all tyrants risk encountering, regardless of any constitutional arrangements.

The check and balance on Hubris that is often (but not always) provided by Nemesis.

Putin will not be the first (or last) dictator to overreach himself in trying to spread their power westwards or eastwards on the land mass of Eurasia.

The problem is that waiting for Nemesis can be like waiting for Godot – and sometimes it does not come in time, or at all.

And that is why, as Freedman implicitly suggests, conflicts are not a time to release leaders and their polices from any scrutiny – but a time where leaders and policies should be most scrutinised.

Would that this now happens to the United Kingdom.

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The constitutional significance of today’s delayed cabinet meeting

21st February 2022

Something unusual happened today.

A planned cabinet meeting was suddenly postponed with ten minutes to go and – this is the important thing – this was done before the glare of the public.

The reason appears to be a policy row between the Chancellor of the Exchequer and the Health Secretary.

Before we look at why this is unusual – and what it signifies constitutionally – let us first look at what is not unusual about this.

It is not unusual for cabinet ministers to disagree – even about major policy issues.

Such disagreement is routine – and it is even to be expected, especially between a finance department and a spending department.

And because such disagreements are a commonplace, there are mechanisms in place to resolve these tensions before they become public contradictions.

One mechanism is ongoing informal (and sometimes even formal) exchanges between the Exchequer and the other department.

Another mechanism is the system of cabinet committees and sub-committees where differences are discussed and agreed positions arrived at – sometimes under the chair of the Prime Minister (or Deputy Prime Minister).

And the third mechanism is the assertion of prime ministerial authority (in theory ‘cabinet collective responsibility’ – where the defeated Chancellor or minister just has to to take it – or leave the cabinet.

Here think about Michael Heseltine’s dramatic departure from Margaret Thatcher’s cabinet over the Westland political drama.

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Today, however, none of these mechanisms appear to have worked.

And so we had the undignified public difference, and a full cabinet meeting suddenly had to be postponed.

The ongoing informal (and sometimes even formal) exchanges between the Exchequer and the health department seem to have failed.

The system of cabinet committees and sub-committees seem to have failed.

And prime ministerial authority also seems to have failed – indeed the Prime Minister seems to have been unaware of the difference.

Something is wrong – seriously wrong – in the business of government for this row to have manifested itself publicly today with the real effect of an unexpectedly delayed cabinet meeting.

It is a signal – and it signifies things may not be well with the constitutional processes that regulate the common differences between Whitehall departments.

And that, from a constitutionalist perspective, is a worrying signal indeed.

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Wokery and law and policy

18th February 2022

Back in the 1980s there was something called the ‘loony left’.

It was a general smear against the Labour Party – based on what were very few actual examples from a few left-wing politicians, mainly in local government.

As a political tactic, it was very successful.

But one problem for the-then governing Conservative party is that some of that party’s leaders actually believed it was true.

They believed there was actually a substantial thing called the ‘loony left’.

And this was part of the reason after 1987 leading Conservatives nodded-along with the ‘community charge’ – or ‘poll tax’ – so as to make these ‘loony left’ local authorities more ‘accountable’.

It is also why, around the same time, we ended up with the vile Section 28.

Government ministers in the late 1980s, and their political and media supporters, took seriously the ‘loony left’ political scare tactic.

And atrocious legislation and policies then followed.

The ironic thing was that the ‘community charge’ that was intended to counter ‘loony left’ councils did far more to bring down the Thatcher administration than it did to undermine any left-wing councils.

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Now, it is happening again – but CTL+F ‘loony left’ and replace with ‘wokery’.

As before, the phrase is a political tactic.

And also as before, there are government ministers (and their media and political supporters) who are taking such things seriously.

The sheer lack of proportion is well described by the Conservative former Lord Chancellor David Gauke in this New Statesman article.

As Gauke avers, it is the current government and not ‘the woke’ that “has attempted to illegally suspend parliament and threatened to break international law. Brexit was always a huge geopolitical error that weakened the West, but the UK government is implementing it in a way that creates additional tensions with our closest allies. It is also a government that appears to think the Prime Minister is above the law.”

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On the back of this facile ‘anti-wokery’ may come legislation just as illiberal and misconceived as Section 28.

It may even lead to colossal policy errors like the ‘poll tax’.

And as with the 1980s, the fundamental problem will be that right-wing populists believed in the turnip-ghosts they had conjured up to scare themselves and voters.

That is why the speech of cabinet minister Oliver Dowden against ‘wokery’ is so dangerous – including for the Conservatives themselves.

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Public interest litigation against public bodies

16th February 2022

There are two ways by which those with public power will act lawfully.

The first is self-restraint: that ministers and officials will act lawfully because, in essence, they want to do so.

The second is by enforcement: that ministers and officials who act unlawfully are open to challenge in the courts and can also face action from the police or other regulatory bodies.

So: if not the first, then the second.

But hopefully the first, which is better for everyone, apart from public law litigators.

The problem is what happens when ministers and officials do not care for self-restraint?

Then we have to go to the second stage, all too quickly.

But then there are new problems.

Who decides, for example, which cases to litigate?

How are those challenges to be financed?

And what if there is nobody in a position to litigate a case?

What is there – ultimately – to stop lawless behaviour by those with public power?

These questions are important – and they are not easy to answer.

One solution is to have non-governmental organisations litigate these cases, in the public interest.

But this brings new problems.

Pressure groups can have their own agendas – and some see litigation as an aid to fundraising and campaigning, rather than a thing in itself.

(When I was legal adviser to a pressure group party to a case that went all the way to the supreme court, I was careful to ensure that there was not a whiff of any ulterior motive and that the focus – correctly – was on the litigation.)

Too many pressure groups litigating elides the distinctions between politics and law.

And some may be tempted to blame the pressure groups.

But.

That is to partly see the problem the wrong way round.

The primary reason why so many non-governmental organisations are litigating is because of problems with those with public power.

The pressure groups in court are (at least) as much a consequence of poor quality policy-making and rule-making by ministers and officials.

In essence: better quality policy and rule-making will mean fewer subsequent legal challenges by pesky pressure groups.

But that would mean ministers and officials facing up to their own failings.

And it so much more easy to blame the pressure groups instead.

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What is wrong about the Cabinet Office

8th February 2022

From an earnest perspective, there are three ‘great offices of state’ – the Exchequer, the Foreign Office, and the Home Office.

And from an ironic perspective, there are also three ‘great offices of state’ – Charles Dickens’ Circumlocution Office, Yes Minister’s Department for Administrative Affairs, and our very own, real-life Cabinet Office.

The Cabinet Office is where policies and reforms and ideas – and careers – go to die.

Why is this?

Part of the reason is that the department itself has no real gravity in Whitehall – major policy is made elsewhere; other departments own major external relationships; and it is not a large spending department.

Any Cabinet Office influence within central government rests upon persuasion and coordination, rather than because of any inherent power.

When I was a civil servant there was a joke: if a senior official is invited to to a meeting at Downing Street, then that official attends; if invited by the Treasury, then they send a deputy; and if invited by the Cabinet Office, they send an apology.

But again and again there is some whizz-bang idea about cross-government coordination, and the implementation of that policy goes to the Cabinet Office.

And you then rarely hear about the policy thereafter.

From time to time you also hear that the Cabinet Office is to be ‘beefed up’ – but usually that lasts as long as it takes to read the relevant news article.

In essence, it is a department which gives the illusion of things being done, rather than the hard crunchy slog of policy formulation and implementation in the larger departments that actually do things.

(The Cabinet Office is also woeful in respect of Freedom of Information.)

And so it is appropriate that today’s reshuffle – conducted by a weak Prime Minister with no serious notions of policy or reform – simply led to yet more ministers at the Cabinet Office, at least three of which will now “attend cabinet”.

Both Dickens and Sir Humphrey would understand such appointments only too well.

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