Category: Transparency

“We do not recognise…” – on the increasingly popular evasive phrase used by government press offices

3rd December 2021

One of the joys of dealing with press officers is their insincerity.

They know they are being insincere and evasive, and you know they are being insincere and evasive.

But they are in their role, and you are in yours.

One of the increasing common formulations adopted by press officers is “We do not recognise [x]”.

The phrase is not a denial: it is not being stated that [x] is false.

Nor is it, of course, an admission.

It is something in between.

In this way the phrase is like “We do not admit” used by civil litigators – though in litigation you should only use that phase if the fact is actually outside of your knowledge, even if you do not accept it to be true.

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“We do not recognise [x]”.

So an alleged thing may be true and unwelcome – but a spokesperson has managed to find something about the thing alleged which means they can avoid admitting it without denying it.

https://twitter.com/davidallengreen/status/1466708215983398913

As a lawyer, I would just then want to ask “well, what do you recognise to be the case?”

Though so deft are press officers at their insincerity and evasion that this clever follow-up will also no doubt be dodged.

And so we have this phrase – joining the likes of “we do not want to get into speculation” and “we do not give a running commentary” – as a means by which government press officers pretend to you (and perhaps to themselves) that there a good reason for not providing the information or confirmation requested.

The shame of it is that government press officers are (or should be) public servants.

The provision of information to the press and the public, in the public interest, is what they are actually being paid to do (and for which many will get civil service pensions and even gongs).

Yet they seem to to take pride in not serving the public interest but the political interests of current ministers.

This uncomfortable truth should be stark and glaring to those who work in government press offices.

But they do not see it.

Perhaps they do not recognise it.

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How if a business issued the government’s “40 new hospitals” guidance it would be acting unlawfully

1st December 2021

The current government makes much of its manifesto promise that it will build ‘forty new hospitals’.

But at prime minister’s questions today, the opposition leader referred to the following guidance for public officials (or ‘playbook’ as it is formally described):

So a ‘new hospital’ includes an additional new clinical building where there is an existing hospital.

And even the refurbishment (or upgrade) of an existing hospital, as long as it looks different from the outside.

Both of these are jolly good things to be welcomed, but no sensible person would call them ‘new hospitals’.

Yet the government is requiring public officials to say this untruth.

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What if a business did this to consumers?

The Consumer Rights Act says things have to be as described.

Regulation 5 of the consumer regulations provides that an unfair commercial practice includes when a practice ‘in its overall presentation in any way deceives or is likely to deceive the average consumer in relation to…the quantity of the product’.

That reference to ‘overall presentation’ means that something hiding in the small print is not good enough as a legal escape.

If a business made such claims to a consumer then the law would regard this as ‘a misleading commercial practice’ and in breach of consumer protection rights.

Even without consumer law, claims that a major thing would be ‘new’ when it would either be merely an addition or a refurbishment would be likely – under general contract principles – to be either a misrepresentation that would mean the contract would be put aside or a material breach of a contract.

Indeed, some would go further and say such knowingly misleading statements in would even constitute fraud.

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The reason why these false claims are to be made so that it will appear that the governing party has met its own political manifesto commitment – and note how the manifesto itself distinguishes between upgrades and new hospitals:

‘Everyone in the UK should have the peace of mind and confidence that come from world-class health care – and so this new One Nation Conservative Government is giving the NHS its biggest ever cash boost, with 20 hospital upgrades and 40 new hospitals […]’

‘[…] have begun work on building 40 new hospitals across the country , as well as investing in hospital upgrades […]’

‘We will build and fund 40 new hospitals over the next 10 years. This is on top of the 20 hospital upgrades announced in the summer […]’.

Three times the promise is explicitly made in the manifesto.

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Of course, law is not politics, and political language is not to be held to legal(istic) standards.

But.

It is rare to have official guidance – even if called a ‘playbook’ – which sets out how public officials are to describe something falsely as a new hospital when it is not a new hospital.

Not only are ministers lying to us, but ministers are now requiring public officials to lie too.

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Covid and the accountability gap

24th November 2021

This is just a brief post to set out some general thoughts on Covid and the  accountability of government.

During this pandemic, the government has done and not done various things, and at some point the government should give an account of what it did and did not do (and is doing and not doing).

Because of the sense of emergency, and because information has often been incomplete, it has been difficult to hold the government to account on a real time basis.

The government has put off any formal inquiry until (at least) next year.

And the other means of holding the government to account – the courts, the parliamentary ombudsman, coroners’ inquests, parliamentary committees – all have their limitations and remits.

No doubt there are some politicians in (or previously in) government who want to push any inquiry as far as possible.

They will want to get to the head-shaking, sad-faced lessons learned and benefit of hindsight stage with little or no affect on their political careers.

But as it stands, we are nearly two years into perhaps the single biggest ever peacetime exercise of public policy, and there has been almost no real time public accountability for the various government decisions and actions (and indecisions and inactions).

And so this episode shows the sheer accountability gap in the constitution of the United Kingdom.

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The ‘c’ word – why ‘corruption’ is the accurate word for describing what the United Kingdom government is doing

16th November 2021

Corruption is more a political than a legal term – at least in the law of the United Kingdom.

For instance: there are no current Acts of Parliament with corruption in their title:

In criminal law there is no particular offence of corruption – but instead offences in respect of bribery and misconduct in public office.

Neither of these offences equate with corruption.

Bribery is too narrow – for taking and giving bribes is only a subset of corruption.

And misconduct in public office is too wide – for this umbrella term can cover official misbehaviour that is not necessarily corrupt.

In everyday legal practice the word corruption is now often lumped in with anti-bribery – with the acronym ABC being used to discuss any policies and laws that deal with such wrongful behaviour.

So to talk of corruption, at least in the United Kingdom, is not to speak of anything legally specific.

The word is about politics, not law.

So if you think term corruption should be used to describe the current government of the United Kingdom then it is because it is a better political (than legal) fit than any other term.

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The other common term on offer is sleaze.

This word is widely used perhaps for two reasons.

The first is because it was once an effective word.

As anyone who can remember the 1990s will know, this term once had considerable media and political purchase.

The word sleaze dominated and perhaps changed British politics.

And so perhaps those using the term are hoping that using the word similarly catches the worlds of media and politics alight again.

An attempt to re-live the 1990s.

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“I’m a firestarter, twisted firestarter.”

The Prodigy, 1996

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The second reason for the avoidance of the ‘c’ word is far less commendable.

It is the notion that corruption is what other nations do – and so the avoidance of the word is an example of British exceptionalism.

Here I recommend the @gathara account by Patrick Gathara and his long-running threads that frame the politics of the United Kingdom, Europe and America in the same (condescending) terms that the politics of Africa are often framed by those in the United Kingdom, Europe and America.

The threads make for uncomfortable and telling reading.

(I have seen these threads described as parody, but the thing is that they are not really parody, and perhaps the opposite, for this is exactly the style in which the media and politicians of United Kingdom, Europe and America routinely frame African affairs – it is a house style, not satire.)

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Corruption, as a word, means debasement.

Think of a corrupted program.

This is more than intended dishonesty – for things can be debased for various reasons.

The general and sustained assault by the British government on a range of institutions and bodies that provide checks and balances is an exercise in debasement.

There is no better word than corruption for what this government is doing to our polity.

For instance: the ultimate problem with the Owen Paterson affair was not so much the paid advocacy – for that had been identified, investigated and decided upon by the relevant committee, and so the system was ‘working’ – but the blatant attempt by the government to use its power to attack the committee and the system generally.

That was the real debasement.

The state of the United Kingdom is being corrupted.

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Politicians and the media use the words and phrases which they perceive as working in their interests.

And politicians and the media currently see the word sleazy as being expedient.

But they also, it seems, see the word corruption as not being advantageous.

Why would that be?

Perhaps is because to use that ‘c’ word would mean that we finally accept that British exceptionalism is a sham.

For the United Kingdom is a corrupted state too.

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Was yesterday’s power-grab against the standards committee an over-reach?

4th November 2021

When those with public power believe they can get away with anything they eventually are confronted with reality.

All power has its limits, even (supposed) absolute power.

The government’s move against the parliamentary standards committee was nothing over than mere gangsterism – as this blog averred yesterday.

There is no possible defence by regard to constitutional principle or general political theory.

It was not even to protect a particular member of parliament.

The particular case in question was a pretext for the executive to undermine an unwanted check and balance.

And it must have seemed such a good idea at the time.

But the morning after: there is a reversal.

The government has perhaps realised it has gone too far.

The opposition parties will boycott the new regime.

That was a foreseeable eventuality – which, of course, this government seems not to have foreseen,

The government is now affecting that any change should be on the basis of consensus.

But that was as true yesterday as it is true today – and so the lack of cross-party consensus does not explain the u-turn.

The government may have simply gone too far – and has not got away with it.

Not all checks and balances are formal constitutional devices.

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When this government does not like a rule which binds it, the government will do whatever it can to circumvent, frustrate, remove or simply disregard that rule

3rd November 2021

There is an extraordinary situation today in the house of commons.

Yes, yet another extraordinary situation – and although such situations are becoming commonplace, they should never be regarded as normal.

The government is instructing its backbenchers to vote down a suspension of a member of parliament who seriously breached lobbying rules.

The government is also seeking to re-write those rules.

As the deputy leader of the opposition rightly said at prime minister’s questions: “when they break the rules they just remake the rules”.

And this, of course, is part of a trend.

Here is one colleague at the Financial Times:

And another:

The overall trend is that if this government does not like a rule which (supposedly) binds it, the government will do whatever it can to circumvent, frustrate, remove or simply disregard that rule.

It is not so much ‘one rule for them, and another rule for us‘ but no rules for them.

And this at a time where the authoritarians in government seek to impose more and more rules on the public – especially those who its political and media supporters do not like.

At base this is not even about ideology.

There is nothing here so grand that can be articulated as any broad principle or general theory.

This is just akin to gangsterism.

Those under the protection of the centre – and those at the centre – should face no constraints on their autonomy.

While those on the outside of this protection, are under what ever obligations that centre believe should be imposed.

The problem for this being a driver of government in a democratic society is twofold.

First: not all governments exist forever, and there will be one point – eventually – where those on the inside will be on the outside.

And second: governments in a democracy ultimately require legitimacy – and doing ‘what works’ cynically can eventually have a counter reaction when the government needs broader support than whatever it can get away with.

So these antics may be clever, but they are not wise.

The public may not care now – and it may not ‘cut through’ – but sensible heads should steer the government away from this illiberal and misconceived approach.

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The United Kingdom state and the asymmetry of information flows

19th October 2021

There is asymmetry in the United Kingdom state (and no doubt other countries) when it comes to information flows.

On one hand: we have the strict official secrets legislation, almost useless freedom of information legislation, and a neat and cosy political-media compact where things can be made routinely – even casually – public without accountability or attribution.

On the other hand: we have extensive surveillance and interception powers by which the state can have access, as and when it wan to almost all information about any individual.

The goal of the modern state is to know as much as possible about individuals, while ensuring individuals know as little as possible about the state.

For just as Frank Wilhoit once defined political conservatism – “There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect” – the same is true of the state more generally, but with information flows.

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How the government has bounced this week’s tax hike through parliament like it bounced through the Brexit deals

9th September 2021

This week’s political excitement about social care and national insurance seems familiar.

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If you set aside all the noise and drama, all that has happened this week is that the government has – at speed – got a huge tax increase past its political and media supporters.

Indeed, a number of those very political and media supporters have clapped and cheered.

There will be no meaningful reform to social care.

There has been no meaningful scrutiny of any proposals.

And, as this blog averred recently, it is political and legal nonsense to say that the extra revenue being raised will be ‘ring-fenced’ for health or social care.

Had this not been done at speed then the implications of the huge tax hike and lack of policy substance may have become apparent.

It has simply been a political smash and run.

A deft exercise in getting something unpalatable past your own political and media supporters.

And it has worked – if you understand it in these cynical terms.

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What makes this seem familiar?

Well.

It is almost the same model of what happened with the Brexit exit and relationship agreements.

They too were rushed through parliament so as to prevent any useful scrutiny from the government’s media political supporters.

The brisk pace meant that many issues were hidden from view – until it was too late.

And, at the time, the government’s political and media supporters clapped and cheered too.

Many are not clapping and cheering now.

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Why we should cherish the Supreme Court of the United Kingdom for complying with the Freedom of Information Act, when other public bodies would not have done

 

5th September 2021

Bless the justices of the supreme court of the United Kingdom.

As you may be aware, there has been a substantial – and amusing, even embarrassing – disclosure under the freedom of information act of documents relating to the departure of former supreme court justice Jonathan Sumption.

A pdf of the disclosure is here – and it rewards being read in full.

I was alerted to this disclosure by this thread from Adam Wagner.

And Joshua Rozenberg has set out a characteristically detailed post about the situation on his blog.

My post is just a footnote to the disclosure and Rozenberg’s post – from the perspective of a former central government freedom of information lawyer.

And, in summary, the footnote is: bless.

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By which I mean no disrespect to the justices of our supreme court.

Quite the opposite: they should be cherished.

For they must be the only senior public sector officials who comply with the freedom of information act in the spirit in which the legislation is intended.

Senior figures at any other public body would have worked with their freedom of information officer to invoke cynically any exemptions to delay and/or block publication.

Indeed, most senior figures in public bodies would not have been so naive as to create things which are capable of being FOId in the first place.

If the freedom of information act worked as it was supposed to work than the sort of disclosures we now have from the supreme court would be commonplace throughout the public sector.

But it isn’t, because it doesn’t.

The freedom of information act is, in effect, an ornament not an instrument.

There is not real sanction for non-compliance or evasion – and any appeal will take years to get anywhere.

It is almost impossible to have disclosure from a public body against its will.

And it is actually impossible to do it short of years’ long process of appeals.

Everyone concerned knows this.

And non-disclosure letters from public bodies are the most dismal, unconvincing and insincere documents produced by public bodies.

Nobody produced in the production, dispatch and receipt of a freedom of information non-disclosure letter has any sincere belief in the contents.

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A bit like pizzas, in a way:

Source: The Onion

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The supreme court, bless them, has taken the scheme of the freedom of information act seriously – and thereby taken the rule of law seriously.

Good on them.

For even though there is no real risk of sanction – nor even compulsion – the supreme court has followed the act, and it made potentially embarrassing disclosures properly.

More than (yet another) ponderous extra-judicial speech about the ‘rule of law’ this disclosure by itself shows how the supreme court takes the rule of law seriously.

As a supreme justice once averred in another context: that is a relief.

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Was the ‘surveillance state’ a price worth paying?

 

30th August 2021

Over at the Foreign Affairs journal is this fascinating, well-argued article:

From a liberal perspective, there are parts of the piece that are both convincing – and disturbing.

For example, the author Thomas Hegghammer avers that not only is the west better resourced:

‘Western governments have also proved to be less scrupulous about preserving civil rights than many expected in the early years of the war on terrorism. When faced with security threats on their own soil, most Western states bent or broke their own rules and neglected to live up to their self-professed liberal ideals.’

The gist of this seems true – and what is disturbing for the liberal is that it may well have been a ‘price worth paying’.

Hegghammer amplifies this point in respect of privacy laws and the surveillance state:

‘The reason information technology empowers the state over time is that rebellion is a battle for information, and states can exploit new technology on a scale that small groups cannot. The computer allowed states to accumulate more information about their citizens, and the Internet enabled faster sharing of that information across institutions and countries. Gadgets such as the credit card terminal and the smartphone allowed authorities to peer deeper and deeper into people’s lives. I sometimes serve as an expert witness in terrorism trials and get to see what the police have collected on suspects. What I have learned is that once the surveillance state targets someone, that person no longer retains even a sliver of genuine privacy.’

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Hegghammer sets out that surveillance and the disregard for civil liberties are just one element of a general anti-terrorist strategy – alongside techniques, resources, intelligence, and the dynamics of the state-terrorist relationship.

And it is not clear whether it is an essential element.

Had Western governments and their citizens been more mindful (or to critics, precious) about their civil liberties, would it have meant that the other elements of anti-terrorism policy would not have worked so well?

And what would it have practically meant for Western governments to have been more ‘scrupulous about preserving civil rights than many expected in the early years of the war on terrorism’ rather than less?

Most liberals will accept that the state can do all sorts of things for the purpose of anti-terrorism, as long as it has a lawful basis and is subject to democratic and judicial supervision and the principle of proportionality, and it lasts no longer than necessary.

Would such requirements really have hindered the security services in their work?

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To a certain extent Hegghammer’s argument has a flavour of ‘just so’ story – there is less terrorism now than before, and so what happened between then and now must explain why there is less terrorism.

But that said: Hegghammer’s observation that the state now has access to online information and communications data that makes it difficult-to-impossible to use electronic devices, media and payments for the purposes of organised terrorism is compelling.

However: terrorism, like other forms of human cruelty, adapts.

It may well be that we have not ascertained or imagined how the next generation of terrorists will work out how to be cruel.

But in the meantime: we will still have the surveillance state – and no state voluntary surrenders its powers.

Perhaps that was – and will continue to be – the ‘price worth paying’.

The price was a high one, all the same.

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