Category: Transparency

Explaining the attack on judicial activism that never happened – three theories

22nd July 2021

The great theatre critic Kenneth Tynan said somewhere that any good theatre critic can describe what the the theatre of their day was doing – the challenge was to explain what the theatre of their day was not doing but could be doing, and why.

This is the same challenge for all commentators, including those of us who seek to explain what is happening – and not happening – with law and policy.

And, as this blog described yesterday, there one thing that is not happening is the government not making a full frontal attack on judicial review in the new courts  bill published yesterday.

(On this, see also Helen Mountfield QC at Prospect today.)

It is always weird when nothing happens when something is expected to happen.

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“Without venturing for Scrooge quite as hardily as this, I don’t mind calling on you to believe that he was ready for a good broad field of strange appearances, and that nothing between a baby and rhinoceros would have astonished him very much.

‘Now, being prepared for almost anything, he was not by any means prepared for nothing; and, consequently, when the Bell struck One, and no shape appeared, he was taken with a violent fit of trembling.’

– from A Christmas Carol by Charles Dickens

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Law and policy commentators were yesterday expectant of a rhinoceros, if not a baby.

So what was finally published – a mild piece of legislation – has given us a fit of trembling.

What have we missed?

And what can explain what happened?

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So far there are three broad theories.

The first is that this is a political false flag.

That the government has an illiberal plan – but for some reason is misdirecting us with this bill.

And indeed, as the eminent admiralty law jurist Gial Ackbar once averred, some things can be a trap.

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Could the ministry of justice really be planning to introduce a raft of amendments late in the passage of the bill, so as to force illiberal measures through?

One would hope not – and one expects ministry of justice officials and lawyers to have more dignity than their home office counterparts.

And – in general terms – bills often start off more contentious than they end, so it would be unusual for such a game of constitutional bait and switch.

That said, one should not let one’s laser field down: this government will seek to be illiberal if it can get away with it.

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If it is not a trap, there are two other possible broad explanations.

One is that put forward by this blog yesterday – which I will call the DAG theory, if only to distinguish me from Ackbar.

This theory is government-facing – and goes to the notion that there is (or was) actually a problem of judicial activism being a myth.

I first put this argument forward in my Prospect column last year, where I set out why there was a discrepancy between the (supposed) fears of the government (and its political and media supporters) and the reality of mundane administrative law decisions.

It would thereby not be a surprise that when the government came to actually legislate – rather than speechify – there was no real problem to solve with primary legislation.

The government had walked up a stair and passed a problem that was not there, and the problem was not there either yesterday, and indeed it had gone away.

If so, this is a similar to previous situations, where the government has sought to ‘reform’ the human rights act or to deal with ‘compensation culture’.

It is always difficult to make laws against turnip-ghosts.

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But there is a third theory, which you may find more plausible than either Ackbar’s or my own.

And that was put forward on Twitter by Alexander Horne.

Instead of my government-facing explanation, Horne argues that it is the policy of the courts that has changed.

And that because there is now no problem of judicial activism, it follows there is no need for a solution.

Horne makes good points.

There is certainly a shift in the supreme court under the new president Lord Reed – and Reed is, as this blog set out in a previous post, a judge who can write that judges should give the assessments of the home secretary more respect with a straight face.

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Where Horne and I agree is that there is currently no problem of judicial activism that needs solving – the difference between us is that I aver it was a turnip-ghost all along.

Whichever theory is correct – Ackbar, DAG or Horne – there will be some commentators and campaigners who will contend that even the two proposed reforms are too much, and that they must be opposed loudly and brashly, and deploying the language of constitutional conflict.

But a good advocate knows that one should choose one’s battles.

The government’s proposals should still have the benefit of anxious scrutiny – just in case Ackbar is correct.

But one should be wary that the language of fundamental opposition to the government be devalued, for if is wasted here then it will have less purchase when it is needed.

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A final word to the Judicial Power Project – a group with the strange view that the primary problem in the United Kingdom constitutional is judicial power and not the lack of checks and balances on either the executive or the legislature.

It would appear that the Judicial Power Project are underwhelmed with the reforms they have so long campaigned for.

You would need a heart of stone not to laugh.

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The Home Office wants to reform Official Secrets law by pretending journalism does not exist

Over at the Guardian there is an important article – which is also worth reading just for its byline

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A rare sighting in the wild of Duncans Campbell

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The article in turn refers to this government consultation document.

The document is interesting (and worrying) in many ways – but one significant feature is how it shows the state has realised that the old state secrecy model in unsustainable in the new technological and media context.

The concern primarily used to be about what could be done by means of espionage.

And this generally made sense, as the means of publication and broadcast were in the hands of the few.

Now the bigger threat is mass-publication to the world.

This is a particularly striking passage (which I have broken into paragraphs):

“…we do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989.

“Although there are differences in the mechanics of and motivations behind espionage and unauthorised disclosure offences, there are cases where an unauthorised disclosure may be as or more serious, in terms of intent and/or damage.

“For example, documents made available online can now be accessed and utilised by a wide range of hostile actors simultaneously, whereas espionage will often only be to the benefit of a single state or actor.”

Unauthorised disclosure is, of course, at the heart of investigative journalism – indeed some define news as being what other people do not want to hear.

And there is already an offence in respect of unauthorised disclosure by third parties.

But that offence was enacted in the happy halcyon days of 1989 – the year incidentally that the WWW was conceived.

A time where the technological extent of unauthorised disclosure was Spycatcher being published as hard copy books in Australia.

So to a certain extent, the consultation paper is not new: the state still wants to control and prohibit what unauthorised third parties can disclose to the world.

What has changed, however, is the scale of potential disclosures – and that also has changed the priority of dealing with such onward disclosure.

But, as the Duncans Campbell aver, this reorientation of the law of official secrets needs to accord with the public interest in accountability and transparency.

In the consultation paper, ‘journalism’ is not mentioned – and ‘journalist’ is mentioned in passing twice.

The role of the media – and the rights and protections of those who publish information to the world – should instead be integral in any sensible regime of official secrets.

Else we will have the spectacle of the 2020s equivalent of the misconceived and illiberal (and preposterous and futile) Spycatcher injunctions of the 1980s.

Not having proper regard to the public interest in transparency and accountability in the making of any public policy – and especially in respect of national security and official secrets – means you have to deal with these foreseeable concerns later.

Journalism does not go away, just because you do not mention it and pretend it is not there.

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From 1984 to Miss Minutes: the surveillance state is watching you, and there is little or nothing at law you can do about it

19th July 2021

One of the many pities about Nineteen Eighty-Four being too familiar a book is that one can overlook the care with the author of the story constructs the world of an intrusive surveillance state.

The author, a former police officer, does this briskly and subtly.

First he takes the central character through a hallway where a poster has face that is – metaphorically – ‘watching you’.

Then you are told:

‘In the far distance a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the police patrol, snooping into people’s windows.’

So you are being watched – not metaphorically – from the outside.

And when the character enters his flat:

‘The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it, moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard.’

You are also thereby being watched – and again not metaphorically – from the inside.

We are still fewer than 700 words into the novel, but the author has already depicted the claustrophobic predicament of living in a surveillance state.

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Today’s Guardian has set out in a number of articles the extent to which such a surveillance regime is now translated from a literary text into social and policy reality.

None of this is surprising.

And none of this is new: the author of Nineteen Eighty-Four easily imagined such things in the 1940s.

What has not changed is the want of those with political control to have such power.

All that has changed is that those with political power now have access to the technology that enables them to have that power.

But perhaps unlike the state in Nineteen Eighty-Four, those with power do not proclaim from posters – in hallways or otherwise – that we are being watched.

And instead of it being on a big screen on your wall, you willingly and casually carry the means of this intrusion around with you.

Indeed, you are probably looking at that very device this very moment.

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From a constitutional and legal perspective, the obvious issues are the extent to which – if at all – there is any accountability for the use of these powers and the extent to which – if at all – there is any regard for human rights and civil liberties.

And as this blog has previously averred, there is very little accountability and transparency for those with political power even for things which are in the open and without the daggerful cloak of ‘national security’.

Indeed, even cabinet ministers have realised recently that they are under surveillance in their own offices with no control over that surveillance and the uses to which it will be put.

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The one welcome, fairly recent development is that this surveillance state is now (nominally) on a lawful basis.

Each power and exercise of power by the state has to be within the law.

But.

Two things.

First: such is the lack of real accountability and transparency, it makes no difference to the surveillance state whether it is within the law or not.

Even when there is something that is known-about and contestable, the deference of our judges when ‘national security’ is asserted is considerable.

Our judges may not use gavels – that is a myth – but they may as well use rubber-stamps.

And second: public law, well, only covers directly the actions and inactions of public bodies.

But as today’s Guardian revelations show, the software and technology comes from the private sector and there is little or nothing that can effectively regulate what private entities can do with the same means of surveillance.

Public law bites – to the extent that there are teeth attached to a jaw capable of biting – only once the technology and data are in the hands of public bodies.

It is a depressing situation – and not one which can be easily addressed, if at all.

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This blog has been criticised that it does not provide solutions to the problems that it describes and discusses.

But sometimes predicaments do not have ‘solutions’.

It is a tidy human habit of mind to conceptualise matters of concern as ‘problems’ – for that often implies there must be solutions.

Once you say a thing is a problem you usually are half-way to suggesting that there must be some solution.

But the predicament of those with power having greater and greater control by means of technology may not have any natural limit.

Each update and upgrade just making it easer for those with public and private power to intrude and invade.

Imagine reboots, stamping out your data – forever.

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The best of questions and the worst of speeches – a practical example of the accountability gap in UK policy-making

15th July 2021

When the question came, it was superb.

Take a moment to listen to this question to the prime minister from the Sky political editor Beth Rigby – and hold on to hear her follow-up.

As a question from a political journalist to a prime minister, the question could not be bettered – in form, content, or delivery.

Superb – but not exceptional.

The fact is that there are some outstanding journalists – in the United Kingdom and the United States – capable of asking excellent questions.

In the United States even before the election of Donald Trump as president in 2016, many of his material and manifest lies, faults and failures were already in the public domain – thanks in part to diligent investigative journalism.

But it did not matter.

A sufficient number of voters clapped and cheered for Trump anyway for him to win the electoral college, if not the popular vote.

Similarly, sufficient number of voters clapped and cheered for Boris Johnson and his governing party to win the general election in 2019, if not the popular vote.

And Johnson’s material and manifest lies, faults and failures were also in the public domain.

It did not matter.

It is a public good – that is a good that does not need any further justification – that journalists as brilliant as Rigby and others ask these questions.

But it is not enough.

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How do politicians get away with it?

Here we must turn to the speech that the prime minister gave before the press conference.

The speech was a policy speech – not a political speech to a party conference or a rally.

The speech was also a formal speech as prime minister, with the text formally published on the government’s official website.

And it was perhaps the worst formal policy speech ever given by a prime minister.

Look at the state of this:

Here is just one sentence:

There are prisoners in Belmarsh with shorter sentences.

The speech is gibberish, for sentence-after-sentence and paragraph-after-paragraph.

And even if you want to give the benefit of the doubt – as not even lawyers and legal commentators speak as precisely as they write – this is not an unofficial transcript but the version approved for formal publication on the official government website.

And regardless of form, there is not a single concrete policy proposal in the speech.

Just words, words, words.

How does he get away with it?

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We have a juxtaposition, a tension – if not a contradiction – in our political and media affairs, and it has implications for all policy-making and law-making.

We may well have first-rate media questions – but we also have low-level political accountability.

Why?

Because politicians with executive power – at least in the United Kingdom – rarely have to be publicly accountable when it can really matter.

A prime minister can brush off a journalist’s question.

A prime minister can brush off the leader of the opposition.

A prime minister with a majority, and ministers generally, are not publicly accountable to anything in any meaningful way for their policy-making and law-making.

Even general elections are not a real check or a balance – as the government reneging on manifesto commitments show.

There is, of course, political accountability to their own back-benchers – but that is rarely in respect of specific policies or laws, and that accountability is informal and often hidden in private meetings and communications.

That is not public accountability.

And so we have the concurrent spectacle of the best of questions and the worst of speeches, and there is little or nothing anybody can do to make the situation any different.

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No, this blog is not ‘assisting the corrupt Establishment in hiding the Truth from the British public’

1st July 2021

This is from a submitted comment under one of my posts on the Daniel Morgan independent panel report (of all things):

‘Now, why would DavidAllenGreen want to assist the corrupt Establishment in hiding the Truth from the British public. Does Green hold the public in contempt too?’

The rest of the comment, and the commenter’s earlier submitted comments, will not be published, because I cannot vouch for the substance of the serious allegations.

But the lack of this publication does not mean, I hope, that I wish to assist the corrupt Establishment in hiding (either capital-T or lower-case-t) Truth/truth from the British public or indeed from anybody else.

Indeed, this blog has done as much as it can to set out commentary in respect of the serious and substantiated findings of ‘institutional corruption’ against the metropolitan police.

I have even done a video film for the Financial Times on ‘institutional corruption’ in the metropolitan police, which is hardly an example of the establishment protecting the establishment.

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But to gain traction with any serious charges of corruption, one needs a methodical, evidence-based approach.

An approach where the ‘c’ word – corruption – is the natural description of what is otherwise set out in detail and is sourced.

There is no doubt that there is widespread corruption, for that is the nature of those with power – and there is no doubt that more could be done by the media to expose the corruption.

But nothing useful is gained by putting the cart before the horse – or the dinghy before the national flagship.

There are different ways of going about it – and because this blog prefers an evidence-based approach in its commentary that does not mean that it is an establishment stooge.

(Perhaps this blog would say that, wouldn’t it?)

The difficulty with making out charges of corruption or of other serious failures is not in making the accusation – which is easy – but in making the charge difficult to evade or dismiss.

Of course, in this post-truth age of hyper-partisanship it may well be that sources and details are not enough – and here on thinks of the accumulation of adverse information about Donald Trump or Boris Johnson – but if anything is to ever have impact, it will need to have some substance to it.

The ‘corrupt Establishment’ is deftly skilled in brushing off even the most serious of complaints and is especially good at deflection when there is more heat than light.

In making it as difficult as possible for things to be deflected is not to hold anybody in contempt.

It is instead to takes things seriously.

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Five Unchecks and Imbalances – a catalogue of Boris Johnson’s ongoing assault on constitutionalism

29th June 2021

Every so often someone posts or tweets a succinct summary of the direness of a predicament.

And yesterday the Guardian live blog managed to put all the following into a single blog update:

None of these are a check or balance in the classic constitutional sense, such as the judiciary or parliament as a whole (though, of course, the speaker is one of the five).

And if only one of these example were sidelines, one could dismiss it as part of the rough tumbles of practical politics.

But taking all five together, there is a trend that should concern anyone – apart from the hyper-partisan supporters of the government.

Each example tells of the lack of constitutional self-restraint that that is the stuff of constitutionalism.

(Constitutionalism being the view that there are political rules and norms that have priority over partisan advantage.)

And these five examples are in addition to the disregard the prime minister has to the checks and balances in the classic constitutional sense: the judiciary, parliament, the independent civil service and diplomatic corps.

This is not – yet – a constitutional crisis, for as the two Miller cases and the Benn Act show, it is still possible for other elements of the constitution to ultimately assert themselves.

But is certainly all part of an ongoing assault on constitutionalism.

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Whatever happened to the concept of ‘maladministration’?

28th June 2021

The recent report from the independent panel on Daniel Morgan used the concept of ‘institutional corruption’ – and on this you can see my Financial Times video here and my post here.

But the deployment of such a term makes one think of other terms that come and go in law and policy – and one such term is ‘maladministration’.

It is an odd term – it does not quite mean ‘illegal’ or ‘unlawful’ and so it does not fit into the neat binary of what is called ‘public law’ – the law that regulates what public bodies can and cannot do.

In principle, it would appear that a thing is capable of being maladministration without it also necessarily being unlawful – either as a matter of public law or as an instance of misconduct/misfeasance in public office.

The notion is that maladministration goes to the thing being complained of having an administrative remedy – rather than a judicial remedy.

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The term ‘maladministration’ is used in English law, see section 5(1)(a) of the Parliamentary Commissioner Act 1967 that established the office known as the ‘ombudsman’ (emphasis added):

‘[the ombudsman] may investigate any action […] to which this Act applies, being action taken in the exercise of administrative functions of that department or authority, in any case where […] a member of the public […] claims to have sustained injustice in consequence of maladministration in connection with the action so taken […].’

The act, however, does not define ‘maladministration’ – and all one can glean from the provision quoted is that the term is something to do with the performance of an administrative function.

In R v Local Commissioner for Administration for the North and East Area of England, ex p Bradford Metropolitan City Council (1979), the court of appeal averred that ‘maladministration’ had an open-ended meaning, covering ‘bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on’.

This is a broad definition.

In 1993 the ombudsman said that ‘maladministration’ included an ‘unwillingness to treat the complainant as a person with rights; refusal to answer reasonable questions; knowingly giving advice which is misleading or inadequate; offering no redress or manifestly disproportionate redress; and partiality’.

These are serious things  – indeed these can even constitute criminal offences.

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Given the breadth of the definition of ‘maladministration’, and the seriousness of what it can cover, it is strange that we do not have more use of the word in the public discussion of failures in the public sector.

For example, the Guardian and the Financial Times each seem to have used the word only twice in respect of United Kingdom matters in 2021.

And this is despite ‘maladministration’ being a term recognised at law and for which parliament has provided a scheme for administrative remedies.

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Why do we hear so little of the term ‘maladministration’?

The reason cannot be that there is no maladministration – from the post office scandal and the Daniel Morgan report to the problems to do with Covid procurements and the exams fiasco, maladministration, like love and Christmas, is all around.

At least the failures that are covered by the word ‘maladministration’ are all around.

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So these leaves two possibilities.

Either: the system of administrative remedies is working so well that that the maladministration that does take place is quickly remedied and the complaints resolved.

Or: the system of administrative remedies is not working, and so complainants are having to resort to public law and other means for their complaints to be addressed.

If the latter, this could mean that the reason we hear so little of the word ‘maladministration’ is that is not a practically useful term.

And if that is the case – that the reason we hear so little of the term ‘maladministration’ is that it is not practically useful – then why would that be the case, when parliament has set up an elaborate (and expensive) ombudsman scheme to deal with ‘maladministration’?

Given the ombudsman scheme – formally known as the the parliamentary commissioner for administration – and given the sheer amount of public sector failings, one would expect that the term ‘maladministration’ would be a commonplace in law and policy discussions.

But it hardly features.

So: is the real reason we hear so little of the term ‘maladministration’ in United Kingdom law and policy that the scheme of  (to use the ombudsman’s full title) is not working?

Some posts coming up on this blog are going to find out.

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WHAT + WHO + WHY + UNREASONABLE + BENEFIT OF ORGANISATION = ‘INSTITUTIONAL CORRUPTION’

27th June 2021

Having set out what the Daniel Morgan independent panel meant by ‘institutional corruption’ in my last post, and having done a Financial Times video on how the panel applied that definition to the metropolitan police, the obvious next questions is whether any other public bodies would also come within this definition.

Or is it a term that can only apply to the metropolitan police in respect of specific matter over a specific period?

If the term ‘institutional corruption’ is to have any import, it must presumably be capable of being applied to other institutions and in respect of other corruption.

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To remind ourselves, this is how the panel defined corruption in its report:

‘The Panel has adopted a broad definition of corruption for the purposes of its work.

‘The definition below is based on the key elements of dishonesty and benefit, and allows for the involvement of a variety of actors and a variety of forms of benefit:

‘The improper behaviour by action or omission:

‘i. by a person or persons in a position of power or exercising powers, such as police officers;

‘ii. acting individually or collectively;

‘iii. with or without the involvement of other actors who are not in a position of power or exercising powers; for direct or indirect benefit :

‘iv. of the individual(s) involved; or

‘v. for a cause or organisation valued by them; or

‘vi. for the benefit or detriment of others; such that a reasonable person would not expect the powers to be exercised for the purpose of achieving that benefit or detriment.

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More succinctly, the test for corruption can be set out in four stages:

(1) WHAT – acts and/or omissions constituting the improper behaviour;

(2) WHO – by a person or persons in a position of power or exercising powers (and this may involve other people too);

(3) WHY – for the direct or indirect benefit of the person(s), their organisation or other people; and

(4) REASONABLENESS – a reasonable person would not expect that WHAT to be done(or not done) by WHO for that WHY reason.

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The panel saw the following failings by senior managers as fulfilling the WHAT + WHO + WHY + UNREASONABLE requirements:

‘i. failing to identify corruption;

‘ii. failing to confront corruption;

‘iii. failing to manage investigations and ensure proper oversight; 

‘iv. failing to take a fresh look at past mistakes and failures; 

‘v. failing to learn from past mistakes and failures;

‘vi. failing to admit past mistakes and failures promptly and specifically;

‘vii. giving unjustified assurances;

‘viii. failing to make a voluntarily commitment to candour; and ix. failing to be open and transparent.’

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Such corruption would be ‘institutional corruption’ according to the panel as follows:

‘when […] failures cannot reasonably be explained as genuine error and indicate dishonesty for the benefit of the organisation, in the Panel’s view they amount to institutional corruption”

The key term here is ‘dishonesty for the benefit of the organisation’.

Accordingly the full test for ‘institutional corruption’ appears to be:

WHAT + WHO + WHY + UNREASONABLE + BENEFIT OF ORGANISATION

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The recent scandal of the post office prosecutions comes to mind as another situation that would meet this definition – especially the knowing non-disclosure and attempts to mislead the court.

The panel themselves mentioned ‘the report of the mid-Staffordshire NHS Foundation Trust Public Inquiry, the report by Mark Ellison QC on his review concerning the Stephen Lawrence investigation, the report of the Hillsborough Independent Panel and the subsequent report by the Right Reverend James Jones KCB, the report of the Gosport Independent Panel, and the work of the public inquiry into the Grenfell Tower fire.’

And I am sure some of you can think of others.

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The meaning of ‘institutional corruption’ – how the Daniel Morgan independent panel set about defining the term

26th June 2021

The independent panel report on Daniel Morgan found that the Metropolitan police was – and is – institutionally corrupt.

To dispute this finding – let alone to attempt to repudiate or refute it – requires you to do one (or both) of two things.

Either you have to challenge the facts on which the finding is based – and this is difficult in respect of the Daniel Morgan report, which is comprehensively sourced and footnoted (and all the report’s critical findings would also have been put to those criticised for their response as part of the preparation of the report).

Or you have to challenge the definition itself.

And so this blogpost sets out the definition adopted and then applied by the panel in the compilation of the report.

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The relevant part for the definition is deep inside the report, on pages 1022 to 1025 of this pdf (page numbers 1017 to 1021 of the document itself).

The starting point is the terms of reference for the panel, which included:

‘The purpose and remit of the Independent Panel is to shine a light on the circumstances of Daniel Morgan’s murder, its background and the handling of the case over the whole period since March 1987.

‘In doing so, the Panel will seek to address the questions arising, including those relating to:

‘[…] the role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption […].’

(Please note that in this post I break the paragraphs of the report out into sentences for flow and sense.)

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The panel, however, did not just proceed from the terms of reference, but sought to understand what ‘corruption’ meant in this context:

‘The Terms of Reference give a vague formulation of […] the role played by police corruption in protecting those responsible.

‘There are two possible interpretations of this.

‘It could mean that,

‘i. one or more police officers became aware after the murder of who was responsible and protected them; or

‘ii. one or more police officers who were not aware of who was responsible for the murder committed corrupt acts for their own reasons, and in so doing compromised the investigation with the result that there was no evidence capable of proving who was responsible for the murder and of bringing them to justice.’

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The panel then said that it was taking its term of reference,

‘[…] the role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption […]’

to mean,

‘whether there was any police corruption affecting the investigation of the murder and making it impossible to bring whoever was responsible to justice’.

Here the panel had regard to the metropolitan police’s own admission that there had been a ‘failure to confront the role played by police corruption in protecting those responsible for the murder from being brought to justice’.

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So that it how the panel was to interpret its term of reference.

But this does itself not tell us what the ‘corruption’ word means.

As the panel noted:

‘The Panel’s Terms of Reference do not include a definition of corruption.’

As the terms was not defined in there terms of reference, the panel had to work out its own definition.

In doing so, the panel looked at other definitions and uses of the word:

‘The Panel has therefore developed its own definition, drawing upon the definitions of corruption and corrupt behaviour used by relevant bodies.

‘Such bodies include the Independent Police Complaints Commission and its successor organisation, the Independent Office for Police Conduct, the National Police Chiefs Council, the College of Policing and the Metropolitan Police.

[…]

‘To inform its analysis, the Panel has drawn upon the report of the mid-Staffordshire NHS Foundation Trust Public Inquiry, the report by Mark Ellison QC on his review concerning the Stephen Lawrence investigation, the report of the Hillsborough Independent Panel and the subsequent report by the Right Reverend James Jones KCB, the report of the Gosport Independent Panel, and the work of the public inquiry into the Grenfell Tower fire.

‘These inquiries and reports provide important insights into serious failures of a variety of public services, including but not limited to the police, and address the complex issues of accountability and corruption.’

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Having had regard to how other inquires and reports have defined and used the word ‘corruption’, the panel also considered the common definitions and uses of the word:

‘The generic definition of corruption is ‘dishonest or fraudulent conduct by those in power, typically involving bribery’.

‘This definition suggests that for dishonest conduct to amount to corruption the person acting corruptly must be someone in power or exercising powers.

‘This definition would apply to police forces, prison, probation and healthcare services, or other organisations serving the public.

‘In these settings, ‘corruption’ may denote the misuse of authority in terms of deviance from the law, professional norms, ethical standards or public expectations.

‘In common parlance ‘corruption’ is also used to refer to the venal behaviour of persons who do not hold positions of power, but who do have something to sell, or who act as corrupters in that they bribe persons exercising powers to commit corrupt acts: it follows that people within and outside the police may be involved in ‘corrupt behaviour’.’

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Having had regard to these other definitions and uses, the panel then went back to its own terms of references:

‘The Panel’s Terms of Reference require it to consider, primarily, wider questions relating to corruption.

‘It is asked to address:

‘i. ‘police involvement in the murder’.

‘By any reasonable person’s definition, if police officers commit or assist in planning a murder, it is not only the most serious crime of taking a person’s life, but it is also the gravest breach of the duties of a police officer.

‘ii. ‘the role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption’.

‘The ‘corruption’ is not explained further, but the Terms of Reference refer to the fact that ‘in March 2011 the Metropolitan Police acknowledged “the repeated failure of the MPS [Metropolitan Police Service] to confront the role played by police corruption in protecting those responsible for the murder from being brought to justice”.

‘iii. ‘the incidence of connections between private investigators, police officers and […] the media and alleged corruption involved in the linkages between them’.

‘To do this, the Panel has adopted an expansive approach to ‘corruption’, including the conduct of the police and the behaviour of other individuals linked to the police or involved in corrupt activity with them.’

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So having considered how the term ‘corruption’ is or had been used elsewhere – from similar reports to common parlance, and having also considered what the word must mean in the context of the terms of reference, the panel then set out the definition of ‘corruption’ for the report.

It was a broad and deliberately flexible definition:

‘The Panel has adopted a broad definition of corruption for the purposes of its work.

‘The definition below is based on the key elements of dishonesty and benefit, and allows for the involvement of a variety of actors and a variety of forms of benefit:

‘The improper behaviour by action or omission:

‘i. by a person or persons in a position of power or exercising powers, such as police officers;

‘ii. acting individually or collectively;

‘iii. with or without the involvement of other actors who are not in a position of power or exercising powers; for direct or indirect benefit :

‘iv. of the individual(s) involved; or

‘v. for a cause or organisation valued by them; or

‘vi. for the benefit or detriment of others; such that a reasonable person would not expect the powers to be exercised for the purpose of achieving that benefit or detriment.

‘The Panel has used this definition to consider the conduct of the police officers involved in the investigations of the murder of Daniel Morgan.

‘The Panel includes in its wider definition of corruption some instances of failures on the part of senior officers/managers, acting as representatives of their organisations.

‘The documentation reveals the following wide range of actions and omissions by senior postholders on behalf of their organisations; many of these actions and omissions have been identified in the reports of other independent panels and inquiries:

‘i. failing to identify corruption;

‘ii. failing to confront corruption;

‘iii. failing to manage investigations and ensure proper oversight; 

‘iv. failing to take a fresh look at past mistakes and failures; 

‘v. failing to learn from past mistakes and failures;

‘vi. failing to admit past mistakes and failures promptly and specifically;

‘vii. giving unjustified assurances;

‘viii. failing to make a voluntarily commitment to candour; and ix. failing to be open and transparent.’

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The panel were also aware that important in understanding any practical definition is an understanding of what is not included:

‘[…] failings do not all automatically fall within the definition of corruption. Some may result from professional incompetence or poor management.’

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And now the panel comes to what it meant by ‘institutional corruption’:

‘However, when the failures cannot reasonably be explained as genuine error and indicate dishonesty for the benefit of the organisation, in the Panel’s view they amount to institutional corruption.

‘A lack of candour on the part of the Metropolitan Police in respect of its failings is shown by a lack of transparency, as well as prevarication and obfuscation.’

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The panel then amplifies or illustrates this ‘institutional corruption” term elsewhere in the report:

‘The family of Daniel Morgan suffered grievously as a consequence of the failure to bring his murderer(s) to justice, the unwarranted assurances which they were given, the misinformation which was put into the public domain, and the denial of the failings in investigation, including failing to acknowledge professional incompetence, individuals’ venal behaviour, and managerial and organisational failures.

‘The Metropolitan Police also repeatedly failed to take a fresh, thorough and critical look at past failings.

‘Concealing or denying failings, for the sake of the organisation’s public image, is dishonesty on the part of the organisation for reputational benefit and constitutes a form of institutional corruption.’

[…]

‘When failings in police investigations are combined with unjustified reassurances rather than candour on the part of the Metropolitan Police, this may constitute institutional corruption.

‘The Metropolitan Police’s culture of obfuscation and a lack of candour is unhealthy in any public service.

‘Concealing or denying failings, for the sake of the organisation’s public image, is dishonesty on the part of the organisation for reputational benefit.

‘In the Panel’s view, this constitutes a form of institutional corruption.’

[…]

‘Unwarranted assurances were given to the family, and the Metropolitan Police placed the reputation of the organisation above the need for accountability and transparency.

‘The lack of candour and the repeated failure to take a fresh, thorough and critical look at past failings are all symptoms of institutional corruption, which prioritises institutional reputation over public accountability.’

The report also provides explicit illustrative examples of institutional (as opposed to non-institutional) corruption on pages 1073-1075 of the pdf (page numbers 1069-1071).

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The report describes the careful consideration that went into defining both ‘corruption’ and ‘institutional corruption’.

The challenge, therefore, for those who wish to dismiss the finding of the independent panel that there was (and is) institutional corruption at the metropolitan police is either to deny the examples or to fault its definition and application.

It may be that some of those defending the metropolitan police see nothing (that) wrong in the internal solidarity and reputational protection that the panel describes as ‘institutional corruption’.

That it is not denied that bad things happened, but that they cannot be described as ‘institutional corruption’.

They may just not like such a term being used of such things.

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Given the care with which the panel considered and then defined (and then applied) the word ‘corruption’ that was expressly part of its terms of reference, any casual knee-jerk dismissal will not be sufficient.

A critic has to do better than to shake their head.

As I have set out in this Financial Times video, the panel have made out a substantial charge of ‘institutional corruption’ – and so this now requires an equally substantial response from the metropolitan police.

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How to show that the Metropolitan Police is institutionally corrupt

25th June 2021

In this Financial Times video out today – no paywall! – I have sought to set out how the 1,200 page, three volume independent panel report on Daniel Morgan substantiates the core charge of ‘institutional corruption’ at the metropolitan police.

Please click through and watch it – and leave any comments below.

(The more clicks and views, the more likely I will be able to do more law and policy videos at the FT – so if you value my law and policy commentary, please do have a look.)

https://twitter.com/davidallengreen/status/1408319293364785154