Category: Transparency

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.

*

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.

*

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.

*

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.

***

Comments Policy

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 one big problem with House of Lords reform

22nd November 2022

As today is a palindrome day – 22/11/22 – here is another palindrome: 111.

One hundred and eleven.

That is, the number of years since this statute was passed:

And if you read the preamble above, you will see that Act was only intended to be temporary, until there was a second chamber constituted on a “popular” basis.

But one hundred and eleven years later, the House of Lords is still there.

For reform is easy to announce, but hard to accomplish.

And in the House of Lords there are still ninety-one hereditary peers – and even twenty-six bishops from the Church of England (which, remember, is the established church in only one of the four constituent nations of the United Kingdom).

There are also several hundred life peers, each of whom is the beneficiary of some sort of patronage, or closed selection process, and none of whom are elected or in any meaningful way politically accountable.

*

Of course, the House of Lords should be reformed or replaced.

Of course.

But how?

And here is a big problem about the House of Lords in our constitutional arrangements.

We need to first understand what a second chamber is for.

*

Any reform of, or replacement for, the House of Lords has to be carried by the government of the day with the support of the House of Commons.

And neither the government of the day nor the House of Commons will usually want to strengthen the power of a second chamber.

This means that any reform or replacement is likely to strengthen both the government or the House of Commons, or both.

You may be think that would be a good thing, and perhaps it is, but as it stands the House of Lords provides a check and and a balance to any government that commands the House of Commons.

*

The House of Lords cannot veto any legislation.

And the House of Lords will not (by convention) delay any legislation for which there is a mandate at a general election.

But for legislation which has been forced through the House of Commons with little or no scrutiny, the House of Lords currently provides an essential function, despite its lack of democratic legitimacy.

How can this function be maintained – even enhanced – with reform or replacement?

*

This problem is why any fundamental reform of, or replacement for, the House of Lords really needs to be complemented by fundamental reform of the House of Commons.

For, as it stands, the House of Lords currently saves the House of Commons – and government ministers – from themselves.

Repeatedly, routinely, almost daily.

*

Replacing life peers with elected politicians seeking re-election will removed the independence and expertise that provides the merit of the House of Lords.

Using some other basis of election – by regions or otherwise – may create a chamber with an equal claim to democratic legitimacy, thereby creating logjams, rather than revision.

As with the Crown, one useful feature of the House of Lords is not so much the power it has, but the power it prevents others in the polity from having.

So any serious discussion about reform or replacement should be preceded by anxious consideration of function and purpose: what is the House of Lords or new other chamber to do?

What is it actually for?

And then we should work backwards from that so as to see how it should be comprised.

By putting the question of composition before the question of function and purpose, one is perhaps putting the state coach before the horses.

*

It is to be welcomed that the Leader of the Opposition, who has a real chance of being Prime Minister after the next general election, is openly discussing doing something with the House of Lords.

The first term of a left-of-centre government is usually the only time we will ever get a programme of constitutional reform – for example in 1945-50 or 1997-2001.

There are certainly a number of smaller reforms which could be made, including excluding the bishops and remaining hereditary peers, and reducing the scope of patronage by existing and exiting prime ministers.

All easy, quick wins.

But anything more significant requires there to be a balancing exercise, between the new chamber and the House of Commons and the executive.

And that balancing exercise should not be rushed.

Though, of course, we should not have to wait another one hundred and eleven years.

***

Please subscribe to this blog – each post will then be delivered to you by email.

(This may be useful if and when Twitter is no more)

***

Please also sponsor this blog, if you can.

Posts like this take time and opportunity cost, and so for more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box (above), or become a Patreon subscriber.

***

Comments Policy

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.

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:

*

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.”

*

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.

*

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.

*

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.

*

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.

*

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.

*

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]

*

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.

*

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.

*

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]

*

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.

*

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.

*

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).

*

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]

*

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]

*

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.

*

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.

*

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.

*

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.

*

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.

*

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.

*

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.

***

Thank you for reading – and this blog needs your support to carry doing these close readings.

Close readings take time and opportunity cost, and so for more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above (suggested donation £1 to £5), or become a Patreon subscriber.

***

Comments Policy

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.

A proposal: the creation of His Majesty’s Inspectorate of Public Procurement

11th October 2022

Yesterday’s post on the latest court defeat of the Good Law Project touched on a serious problem with public procurement in the United Kingdom.

The problem is, in a word, accountability.

The law of public procurement provides for special duties on public bodies (and some utilities) when they procure goods, services and works.

These special duties do not apply to private purchasers of such things.

These special duties include the legal principles of transparency and equal treatment.

One reason for these special duties is to promote competition: public supply contracts can be lucrative, and so the competition for such contracts should be as open as possible.

Another reason for these special duties is that it is a public good that public bodies are transparent and treat tenderers fairly and equally.

But.

It is one thing to have such duties, but it is another to ensure that they are enforced and observed.

The unfortunate implication of the most recent Good Law Project court defeat seems to be that it should be left to disappointed tenderers to bring legal actions in respect of non-compliance with public bodies with the legal principles of public procurement.

There is, of course, no dispute that such disappointed tenderers would have standing to bring a challenge.

But it is unrealistic to expect typical government suppliers to litigate against their customers and to accept substantial litigation and costs risks.

Sometimes it can make commercial sense for a disappointed supplier to bring such a claim, but it is rare in practice.

Typical government suppliers have no incentive to vex or irk their main customers – and, regardless of the theory that such things should not be taken into account in the next procurement exercise – upsetting major customers is not usually a sensible thing to do.

And if disappointed tenderers are disincentivised from bringing challenges, then who enforces the rules?

The courts do not seem to like self-appointed crowd-funded publicity-seeking groups like the Good Law Project bringing such challenges.

But if such groups do not bring challenges, then who will?

My own view, for what it is worth, and as a former central government public procurement lawyer, is that there should be an independent statutory body that can challenge seemingly errant public procurement exercises.

This would do domestically what the European Commission can do in respect of breaches of European Union public procurement laws.

It would be like an Office of Fair Trading or National Audit Office but for public procurement, with powers to request documents and issue sanctions.

Such a body would also be able to look at complex procurement issues in a way that a court is ill-equipped to do in litigation.

And to placate those who would not like this domestic equivalent of the European Commission, it could be called something quaint like His Majesty’s Inspectorate of Public Procurement.

The alternative – given that bodies like the Good Law Project are not to have standing – is to have a system of law that is supposed to act in the public interest which is, in effect, unenforceable other than by the untypical and occasional, desperate and litigious government supplier.

The “public” needs to be put back into public procurement, and this is one proposal for how that can be done.

***

Comments Policy

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.

 

 

FoI requests regarding the “absolutely devastating” legal advice

30th September 2022

The Freedom of Information Act of the United Kingdom is not an impressive statute.

I have known this from the beginning, for I was a government lawyer when the Act took effect.

I even attended meetings of the now notorious “clearing house” at the Cabinet Office that considered certain complex and/or cross-governmental requests.

*

The Act has no bite – unless you want to spend a considerable amount of time challenging decisions all the way to court.

If a public authority does not want to give you the information requested then it will usually find a basis for not doing so.

There is perhaps no more insincere a genre of official correspondence than FoI letters saying that exemptions apply, additional time is needed and balancing exercises need to be conducted – all of which are, in reality, delaying tactics which end up with no information being willingly disclosed.

Everyone concerned knows this – those requesting the information, the FoI officers, and their internal clients.

It makes you think of this classic Onion story:

Everyone involved in making a FoI request, handling a FoI request, considering a FoI request extremely cynical.

*

But.

From time to time, FoI requests may be useful.

And in respect of the “absolutely devastating” legal advice previously discussed on this blog – see here and here – FoI requests may be interesting.

This is partly because by publishing the advice on 2 September 2022 the government waived legal advice privilege in that advice.

The usual go-to privilege exemption for government in respect of FoI requests for matters concerning legal advice is, in my view, no longer available for the government here.

And by going to an external law firm, rather than using the government legal service, the usual go-to exemption of commercial interests is less strong for the government, as there is a public interest in openness about whether this procurement actually provided value for money.

The immediate publication of the advice on the gov.uk website also raises a further public interest in favour of disclosure, given that it appears to have been an attempt to bounce the privileges committee.

As the committee stated:

My FoI requests are here, where you will be able to follow their (lack of) progress.

Each request seeks disclosure of particular information and there is method in the madness of how I have arranged and framed the requests – in particular how they are arranged and framed so as to strengthen the (inevitable) appeals.

I have no illusions that the government will not disclose this information happily, and so I am thinking backwards from the (inevitable) appeals.

“Everyone involved in making a FoI request, handling a FoI request, considering a FoI request extremely cynical.”

*

My motivation, for what it is worth, has little or nothing to do with whether the former Prime Minister is disciplined or not by the privileges committee.

That is a matter for the committee and parliament, and I do not really care either way, as long as the committee and parliament are satisfied.

My concern, as a former government lawyer, is that there is something deeply wrong for any government (of any party) to use and publish legal advice in this manner.

Legal advice is legal advice, and government communications are government communications, and there should be little public overlap.

And this is especially the case where it appears an opinion was sought not for legal advice, but to be published and publicised so as to influence a parliamentary committee and to place public and media pressure on that committee.

It would not matter if that was Boris Johnson or Jeremy Corbyn or Elizabeth Truss as Prime Minister.

Something wrong happened here, and it really should not happen again.

***

Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.

Posts like this take time and opportunity cost, and so for more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

***

Comments Policy

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.

It is not “local journalism”, it is journalism

29th September 2022

This was not a good day for the new Prime Minister Elizabeth Truss.

And that was just one of many local radio interviews, which are collected together here:

 

The interviews were excruciating.

And they were very effective:

One reaction to this round of interviews was to praise local journalists for pressing this hard questions about urgent matters.

But this was not mere local journalism, it was journalism.

And it showed up, by relief, how hard questions about urgent matters are not similarly pressed at the national level.

There are some very fine national journalists, in the so-called lobby and otherwise.

But there is also what can be called an information economy.

A national political journalist is often only as good as their access to political information that is not otherwise available.

Of course: there is a need for off the record and background conversations.

But.

Politicians and their advisers take advantage of the need for a supply of information and so can exclude any journalist who pressed hard questions about urgent matters.

This means that the only broadcast and newsprint journalists who will press on regardless are those who are so established no longer need to be supplied by the information economy of Westminster.

And such established media figures will often have their own agendas and prejudices too.

But for an up-and-coming political journalist there is a constant risk of exclusion from the information economy.

And it is easier to state the problem rather than to fix it.

One possibility is that the news media shy away from using stories where there is nobody on the record.

But if one news media site does this, then it will be at a competitive disadvantage.

*

My own approach to commentary and journalism is to rely as much as possible on public domain sources – asking hard questions of texts rather than of people, and comparing (and contrasting) multiple documents.

But that sort of commentary and journalism can only go so far, and the human elements  of policy and law making need there to be journalists who ask questions of politicians.

And politicians need to face such questions, as it is a good discipline.

Accountability leads, generally, to better government.

So it would benefit everyone involved if the Westminster information economy was made more, well, more efficient.

And, if so, a Prime Minister would not be able to tell the difference between quizzed by a national journalist and a local journalist.

***

Comments Policy

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.

Making the Accession Council inaccessible

26th September 2022

You may recall this blog had a positive post about the broadcasting of the Accession Council:

That detailed post even featured in the House of Commons briefing on the accession of the King:

The broadcasting of the full Accession Council was a boon for the public understanding of the constitution of the United Kingdom, I said.

I even ventured that that further Privy Council meetings could now be televised.

This could be done easily, it seemed to me, as such broadcasts would be in the gift of the King.

Oh what a fool I was.

Of course this welcome shift to transparency would not last.

As reported by the Guardian:

(Highlighting added.)

*

It was too good to be true.

The new King is still the same old Prince of Wales who insisted that his notes to ministers be outside the scope of the Freedom of Information Act.

Prince Hal has not become Henry V.

This is not a bright new morning of royal openness, but a resumption of the tight controls of information that we are used to.

This is such a shame.

The crown had an opportunity to throw obscure parts of our constitution into public gaze, to balance the usual focus on Westminster and Downing Street, to reveal the hidden wiring.

The King had an opportunity to use his control of what can be broadcast to show his engagement with process and practice.

And now, the cloak is too pulled over again.

Oh well, it was good while it lasted.

***

Comments Policy

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.

Hillary Clinton’s emails vs Donald Trump’s boxes of files – and the dangers of hyper-partisanship

 

You will remember the issue of Hillary Clinton’s emails.

She used a private email server during her time as Secretary of State.

You may also be one of those who formed the impression that a later statement by the director of the FBI on the issue led to Clinton losing the presidential election to Donald Trump.

You may also recall the chants of “lock her up” by Trump supporters in response to mentions of this email issue.

*

Those in executive office, it would seem, should be careful about how they store information – else they could be breaching federal law.

Framed in those general terms, this description of what Clinton did wrong can cover what appears to be what Trump may have done wrong.

For today there was a search at Trump’s Florida residence by the FBI.

And the search was not for emails, but for classified documents, wrongly taken from the Whitehouse.

Hard copy equivalents of the electronic documents of Clinton.

But instead of clapping and cheering, as they did with FBI announcements about Clinton, Trump supporters are against this development.

So here was Trump-supporting Congressman Kevin McCarthy on Clinton’s emails:

And here is the very same politician on the search at Trump’s property:

There is no intellectually honest way that these two stances can be reconciled.

The only explanation for the two stances is hyper-partisanship.

And like many hyper-partisans, he has invoked constitutional arguments of first principle when it suits his cause, but does not apply them the same way against his cause.

It is this hyper-partisanship which is worrying.

Either the FBI should be free to look at Clinton’s emails or Trump’s boxes or they should not.

But to say one is good and the other bad signifies a partisanship that picks and chooses which basic principles should be complied with.

And as this blog has said before, constitutionalism is the notion that there are certain fundamental rules and principles that should govern political behaviour regardless of personal or partisan advantage.

The FBI should be left to get on with their investigation and to follow where the evidence takes them, without fear or favour.

McCarthy is right that there is an intolerable state of weaponised politicisation.

But it is coming from Trump supporters, and it does not bode well.

***

Comments Policy

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.

The curious resignation letter of Lord Geidt – what it says, what it does not say, and what it signifies

16th June 2022

Lord Geidt is an unlikely man of steel.

Yet it appears that steel was the reason for his resignation.

And so, as a discreet but embarrassed courtier, he has chosen to exit via the ‘trade’ route.

(Photo by Chance Agrella from Freerange Stock – donation made.)

*

See this outstanding and informative thread from the estimable trade expert Sam Lowe for the practical background to this matter:

*

But what can we make of the resignation letter and the reply?

*

Lord Geidt comes from a diplomatic background.

And diplomats, like lawyers, are wordsmiths.

(It is just that their wordsmithery is often about imprecision and ambiguity, in contrast to the lawyerly lust for precision and clarity.)

He will have chosen his words and formulations carefully.

So let us look at the operative paragraph:

An “impossible and odious position” is quite a striking thing to say.

(Though “deliberate and purposeful” seems a tautology.)

The Prime Minister’s letter sets out more about the request for advice:

*

There is a lot here that does not make immediate sense.

Lord Geidt for all his many merits is not a lawyer, still less a trade lawyer.

There would be no obvious reason for “tasking” him for a view on something to do with the legality of tariffs.

The question must have come before him another way.

Some are speculating that it may be because of party donations, but this appears to be being denied (though the denial is in a curious form):

My current suspicion is that there may have been a request for a ministerial direction to do something with which an official did not feel comfortable, which then somehow got referred to Lord Geidt.

Who knows.

But connecting the [X] of a steel tariffs issue to the [Y] of an ethics adviser resigning is not easy.

And this is the case even if Lord Geidt simply used this issue as a pretext to resign.

There is something missing here.

*

But.

What is not missing here, however, is that this incident shows that our current Prime Minister is at best indifferent to two rules-based regimes.

The first is the Ministerial Code – which, as this blog has previously averred, is a constitutional nonsense, as it offers no real check or balance whatsoever to any Prime Minister.

The second is the rules-based system of the World Trade Organisation.

You may recall government-supporters during Brexit clamouring for the United Kingdom to trade on ‘WTO terms’.

It often seemed they did not know what that actually meant, and it was said because it sounded good.

Well.

It seems that the government of the United Kingdom is as contemptuous of this type of international law as it is of others.

This very week we have seen the government of the United Kingdom seek to break international law with the Northern Irish Protocol Bill and make aggressive noises about compliance with the orders of the European Court of Human Rights.

The rules of the World Trade Organisation are now the third international law regime the government of the United Kingdom want to be free from this week – and it is still only Thursday lunchtime.

*

At the heart of this government is a sense of lawlessness – that in area after area there is the view that rules do not and should not apply.

The resignation of Lord Geidt seems to be a double-whammy of two such areas – the Ministerial Code and WTO rules.

But it could have been compliance with the orders of the European Court of Human Rights, or compliance with the Northern Irish Protocol, or compliance with Covid regulations, and so on.

And so on.

Perhaps we will find out more about the circumstances of this particular resignation.

But we already know from previous resignations that much of what has happened is already all too clear.

**

Thank you for reading – posts like this take time and opportunity cost, so please support this free-to-read independent source of commentary.

For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

***

Comments Policy

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 resignation of Lord Geidt after being placed in an impossible position, after being appointed to an impossible position

15th June 2022

Another ethics adviser to the Prime Minister has resigned.

Lord Geidt was placed in an impossible position.

Not least because he was appointed to an impossible position.

As this blog has previously averred, the entire scheme of the Ministerial Code, with an advisor on ministers’ interests, was a constitutional nonsense.

This is because such a code and such an adviser provided no actual check or balance on the power of the Prime Minister.

The code and the adviser only has the power which the Prime Minister of the day allows it to have.

And like most forms of supposed ‘self regulation’ it was in fact an absence of regulation.

It was a cloak for sheer prime ministerial power, and not any counter to it.

This blog does not call for the resignation of people in positions in power often – but this blog did say Lord Geidt should resign.

 

And well done Lord Geidt for resigning when he was placed in an impossible position, while attempting to fulfil this impossible position.

***

Comments Policy

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.