Category: Transparency

Some thoughts on having read the Daniel Morgan independent panel report

22nd June 2021

I have now read and re-read the Daniel Morgan independent panel report, and here are some thoughts that I do not think I have yet seen elsewhere.

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First: corruption and other failings do not only go in one direction.

The problem that is most associated with the Morgan case is that corruption meant that the original investigations did not go far enough.

And this report certainly details the failings of those first investigations.

But what those following the case will perhaps not appreciate is that the later investigations can be regarded as having gone too far.

In particular, the manner in which the most recent investigations went about procuring and even contriving evidence so as to get the prosecutions is uncomfortable reading.

When the court threw out the prosecutions in 2011, it has to be said that the court was right to do so.

There were serious problems about how the prosecution case had been put together.

And botched, over-zealous investigations and prosecutions serve nobody – and even create false hopes

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Second, and I will set out in more fully in a Financial Times video later this week: the panel substantiate their finding of ‘institutional corruption‘.

The panel define this term with care and show what comes – and what does not come – within the definition.

The panel then applies the defined term consistently, and the report provides a number of sourced examples illustrating institutional corruption – and showing implicitly why no lesser term would be as apt.

Those – such as former metropolitan police commissioner Ian Blair – who aver that there is no evidence of institutional corruption either have not read the report or are being dishonest.

The evidence is there – detailed and sourced and evaluated – and it is difficult if not impossible to gainsay that it fulfils the defined term.

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Third: we may know more why the successive investigations and prosecutions failed, but we are no nearer knowing who murdered Daniel Morgan, and why.

If anything, the report shows the weaknesses of a number of theories about why Daniel Morgan was murdered – for example, the claim that Daniel Morgan was about to expose police corruption.

The murder case is still open – and, indeed, the report even points to a couple of new lines of enquiry.

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And finally: some (minor) criticisms.

The numberings of sections and paragraphs of the report are difficult to follow – with paragraph numbering re-starting completely (and confusingly) with each chapter, and this makes it difficult to cross-refer between different parts of the report.

The report should have had a table of recommendations  and conclusions – for currently the recommendations (many of which are important) and conclusions are scattered throughout the report and hard to find.

But these criticisms go to form, rather than substance.

In substance, the report will be hard to dislodge as an indictment, and it needs a stronger defence from the metropolitan police than a pretence that there is no evidence of institutional corruption at all.

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The Accountability Gap and the State of the United Kingdom

19th June 2021

Here is a challenge.

Think of a normal, day-to-day process of the United Kingdom state.

And then try to think of examples when that process has succeeded in holding the state accountable – that is against the government’s wishes.

It is not easy.

Freedom of information is impotent.

The public services ombudsman is inefficient (at best).

Debates on the floor of the house of commons – and ‘opposition days’ – provide little more than Westminster theatre.

The prime minister casually lies at the weekly set-piece of political accountability, without any sanction or shame.

Written parliamentary questions take an age to be answered – and the answers given are often useless.

Government press offices are expensive exercises in not providing any help other than to the careers of those who staff them.

The only exception is that, from time to time, a parliamentary select committee can publish a report that hits through – though this often is down to the capabilities and qualities of whichever clerks work for the committee, than to the MPs and peers which formally comprise the committee’s membership.

And so because the normal processes of the state are generally so weak that we end up with ad hoc processes such as inquires and court cases to force the state into accounting for its actions (and inactions) against its will.

Think here of the post office scandal litigation, and think of the Hillsborough and Daniel Morgan panels.

And there are other examples.

(And imagine how many examples there are where there have not been such determined campaigners dedicated in getting at the truth.)

Ad hoc exercises in practical accountability such as court cases and panel inquiries are, however, often undermined (as this blog averred yesterday) by a legal inability to force disclosure against the state’s will or interests.

And each success in forcing accountability by means of a court case or an inquiry usually has equal and opposite significance as an example of failure of the institutions of the state to have held other parts of the state properly accountable in the first place.

In particular: the failure of parliament to be an effective check on the executive.

There is a severe accountability gap in the state of the United Kingdom.

And it is from this gap so many other political problems emerge.

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Judicial review, Dominic Cummings and ‘Potemkin paper trails’ – and why courts require reasons for certain decisions

11th June 2021

In three tweets in a thread posted this week, Dominic Cummings, the former assistant to the prime minister, refers to ‘Potemkin’ paper trails and meetings.

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What does he mean?

And does he have a point?

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What he is alluding to, of course, are the ‘Potemkin’ villages, where things in bad conditions were dressed up to be in good conditions so as to mislead others.

In the context of judicial review, Cummings presumably does not mean that bad reasons would be dressed up as good reasons.

What he instead intends to mean is that there could be artificial reasons and contrived meetings the purpose of which was to make a decision judge-proof.

To a certain extent, he has a point.

In the judicial review case in question, had there been evidence of officials conducting any form of evaluation exercise then the tender award may have been harder to attack legally.

And such an exercise could, in reality, have been nothing other than going through the motions rather than anything that could have actually led to another agency actually getting this valuable contract.

But this is not the reason the courts require reasons for certain decisions – and it may not have changed the judgment in this case either.

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Judges and courts are not stupid and naive.

Judges and courts know full well reasons can be artificial and contrived.

The judges were once barristers and solicitors and, as such, they would have had considerable experience of advising clients on providing reasons for certain decisions. 

The purpose of requiring reasons for decisions – and for ministers and officials to say they are true reasons – is to make it more difficult for bad and false decisions to be made.

For example – take the decision by the government to seek a prorogation of parliament in 2019.

No minister or official – or adviser – was willing to sign a witness statement (under pain of perjury) as to the true reason for advising the Queen to prorogue parliament.

And without such a sworn (or affirmed) reason, the government lost the case.

Reasons also provide a reviewing court with a basis of assessing whether a decision was so unreasonable that no reasonable decision could have made it, and also of assessing whether relevant considerations had been included and irrelevant considerations were excluded.

Providing reasons does not provide an escape route for cynical and irrelevant and unreasonable decision-making.

But it is an impediment, and one that makes it harder for ministers and officials to get away with bad decision-making. 

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And in the recent judicial review, it is not clear to me (as a former central government procurement lawyer) that even an artificial ‘Potemkin’ exercise would have necessarily saved the decision from legal attack.

Awarding a high-value contract to cronies where a nominal (though documented)  exercise of discretion had not shown any actual objective advantage over other possible suppliers would still have been open to legal attack.

So this is not necessarily a case where the failure to provide a ‘Potemkin’ paper trail is to blame for the loss of a legal case.

The pram may well have fallen down the stairs anyway.

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Why is it so difficult to prosecute for the sale and purchase of peerages?

7th June 2021

A person is in the news because they donated £500,000 to a political party days after taking a seat in the house of lords.

This post is not about that person.

I have no idea about the circumstances of that appointment. and so I do not make any allegations in respect of those circumstances – and this is not just safe libel-speak, I genuinely do not know, and nor (I suspect) do you.

(And anyone commenting below who makes an allegation of criminality in respect of that appointment – or anyone else – will not have their comments published – this is not Twitter, you know.)

This post is instead about the legislation that is usually mentioned when such appointments are made: the Honours (Prevention of Abuses) Act 1925.

It is a curious statute – not least because the offences it creates appear hardly to have ever been successfully prosecuted.

(The one early exception appears to be Maundy Gregory.)

 

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The legislation has one substantive clause that in turn creates two offences.

The first offence is (and in language itself as cumbersome as the name, title and style of any obscure peerage):

‘If any person accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, or for any purpose, any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour.’

Let’s try to make sense of this word-soup.

This first offence relates to the person who is (in effect) on the supply-side of a relevant transaction – the person ‘accepting or obtaining’ the ‘inducement or reward’.

This supplier has to be shown to (a) accept, (b) obtain, (c) agree to accept, or (d) attempt to obtain [x] in return for [y].

The [x], in turn comprises two things: (a) any gift, money or valuable consideration which also has the quality (b) of being an inducement or reward for procuring or assisting or endeavouring to procure the grant of [y].

This means proof of a ‘gift, money or valuable consideration’ is not enough: there also needs to be proof of its purpose.

The [y] is the most straightforward: ‘the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant’.

What all this means is that showing there is cash and an appointment is not enough: there has to be proof of intention to the criminal standard of proof – that is (in general terms) beyond reasonable doubt.

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The second offence deals with (in effect) the demand-side:

‘If any person gives, or agrees or proposes to give, or offers to any person any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour.’

There is no need to unpack this like the first offence – but you will notice that again there is the need to prove that the ‘gift, money or valuable consideration’ is for the purpose of bing an inducement or a reward.

So, as before, showing there is cash and an appointment is not enough – there needs to be proof of intention.

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Those with good political memories will recall the ‘cash for honours’ investigation of 2006-2007.

This investigation included the extraordinary moment of a dawn-raid on the home of a government official and the questioning by the police of the then prime minister.

All very dramatic.

But nothing came of it.

No charges were brought.

The Crown Prosecution Service provided detailed, legalistic reasons for their decision not to prosecute.

The CPS averred that not only did it need to prove intention (on both sides) but also that it also had to prove that there was an agreement:

‘If one person makes an offer, etc, in the hope or expectation of being granted an honour, or in the belief that it might put him/her in a more favourable position when nominations are subsequently being considered, that does not of itself constitute an offence. Conversely, if one person grants, etc, an honour to another in recognition of (in effect, as a reward for) the fact that that other has made a gift, etc, that does not of itself constitute an offence. For a case to proceed, the prosecution must have a realistic prospect of being able to prove that the two people agreed that the gift, etc, was in exchange for an honour.’

These CPS reasons were compiled and endorsed by some very clever criminal lawyers – though the rest of us may struggle to see the absolute need for proving an agreement under the 1925 Act.

Nonetheless the CPS insisted:

‘In essence, the conduct which the 1925 Act makes criminal is the agreement, or the offer, to buy and sell dignities or titles of honour. Section 1(1) is drafted in wide terms and captures any agreement in which a seller agrees to procure a peerage in return for money or other valuable consideration. Section 1(2) is also drafted in wide terms and captures any agreement in which a buyer agrees to provide money or other valuable consideration, in order to induce a seller to procure a peerage.’

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If the CPS are correct in this interpretation and construction of the statutory offences, then this makes it hard, if not impossible, for the offence ever to be prosecuted successfully.

And, even without the CPS gloss, the requirement to show intention made the offence hard to prosecute in the first place.

There may be other laws which may apply – for example, fraud legislation – but not the one piece of legislation that actually has the sale of honours as its dedicated purpose.

For, as long as those involved make sure there is no paper-trail and that the choreography of nods-and-winks are done in the right order, there is no real danger of any prosecution under the 1925 Act.

What the 1925 Act prevents is the blatant Lloyd-George style of an open market for the sale and purchase of honours.

For a statute to only regulate (in effect) the seemliness of the trade in peerages and other titles is a very, well, British (or English) thing to do.

Otherwise, the 1925 Act is an ornament, not an instrument – and so it is as much a mere constitutional decoration as any ermine robe, and is just as much use.

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The Prime Minister’s disregard for rules-based regimes

6th June 2021

This is just a short post today – more of a signpost – to point you towards an interesting and thought-provoking post by Hannah White at the Institute of Government.

Her post brings together various examples of the contempt in which the current prime minister holds a range of rule-based regimes – showing that for Boris Johnson, to echo Leona Helmsley’s supposed words, rules appear to be for little people.

There are, of course, a number of problems with the prime minister’s approach.

For example, a great deal of the constitution of the United Kingdom is based on self-restraint and convention – and, although many prime ministers have breached constitutional norms, none have done so as openly and unapologetically as the current prime minister.

Another problem is that – especially at the time of this pandemic and also as the United Kingdom adjusts to its post-Brexit future – there will be a need for various rules to be followed as well as made.

And it is difficult to insist on others keeping to the rules when the head of the government himself sees compliance with rules as, at best, optional.

And perhaps the biggest problem is that there is a sense of checks and balances simply not mattering any more – a further move towards a central command polity.

Of course, in our present day hyper partisan political culture, few will care about such things.

The constitution of the United Kingdom is now, essentially, whatever Boris Johnson can get away with.

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Five glaring issues about the announcement of the ‘new national flagship’ prestige procurement

2nd June 2021

You may think that after that botched ferry contract that the government would steer clear from further Brext-related maritime procurements.

Then the chair of the public accounts committee said:

‘The Department for Transport waited until September 2018 to start thinking about the risks to freight transport across these important routes and entered into a £13.8m contract with Seaborne Freight despite it being a new operation, owning no ferries, and not having binding contracts to use the specified ports.

‘We will be pressing the Department for answers on how it awarded its three new ferry contracts, what it is doing to manage risks and exactly what it intends to do now it has axed the contract with Seaborne.’

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You would be wrong, for the government has now announced a new procurement exercise, the cost of which is reported to be currently set at £200 million – that is about fifteen times more expensive than those non-existent ferries.

It is a curiously worded announcement – and should be read carefully in full.

Here are five observations about what the announcement says – and does not say – about this prestige project – from my perspective as a former central government public procurement lawyer.

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There is no mention of the royalty in the announcement.

Given previous attempts at such a flagship have said that it would be a new ‘royal yacht’, this must be a deliberate omission.

One would not accidentally fail to mention that the new ship was to be a royal yacht and have royal blessing if such things were true.

Indeed, the glaring omission in the announcement indicates that the announcement is a negotiated document, where the wording has been subject to intense consideration and internal discussions and approvals.

And so, although the Crown is prevalent in the polity of the United Kingdom – from underpinning the executive, the legislature and the judiciary, royal charter bodies, the maintenance of the queen’s peace and the armed services – there appears to be one thing the royalty does not want to be connected with, and that is this ship.

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The second omission is that the announcement does not say – expressly – which government department will be responsible for procuring (and/or commissioning) and – as importantly – maintaining the ship.

The announcement hints that it may be the Ministry of Defence – and there is mention that ‘the ship will be crewed by the Royal Navy’.

And given that the MoD is the one government department with the experience and resources to procure and maintain such a ship then this would be its natural administrative berth.

But the announcement does not say – expressly – that it will be under the MoD, and the purpose of the vessel does not appear to be a military one.

And there is no particular reason why the MoD – with its own budget constraints – would want to be given the costs of procuring and maintaining a ship with no obvious military purpose or value.

If – and it is an ‘if’ – the ship is to be procured and maintained by another government department, but with an agreement with the MoD for the use of the Royal Navy for crewing the ship, then we have the prospect of Whitehall (ahem) surf-wars over which department will be responsible in the event of any problems.

And prestige procurement projects do tend to have problems.

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A third omission from the announcement is about which suppliers will be responsible for the whole-life maintenance of the ship.

The announcement states that a ‘tendering process for the design and construction of the ship will launch shortly’ – but there is no mention of any similar tender exercise for the upkeep and repairs to the ship over its expected thirty-year service.

Given that this ship is (intended to be) a bespoke construction, the question of ensuring that there are sufficient arrangements for its ongoing maintenance is just as important as the initial design and construction.

A plausible scenario is that a bespoke ship is designed and constructed but its service life is severely limited as no thought had been put into what happens next with such a bespoke construction.

Another plausible scenario is that the costs of maintenance and repair over thirty years come to be far higher than the costs of the initial design and construction.

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A fourth omission is any evidence that the practicalities of this procurement exercise have been thought-through.

For instance, there is no explanation as to why it would not be more cost-effective to refit or to purchase an existing off-the-wharf (ahem) ship and to convert that ship for the envisaged purpose.

Indeed, there is no mention of any business case at all for this specially designed and constructed flagship.

There is also no mention of the role, if any, of private finance – and if there is to be a private sector element, who will bear the risk of any commercial problems.

And this, of all projects, will be too big a project to sink.

There is also no mention of what would happen if (which is conceivable) it would be cost-effective for the ship to be designed by a United Kingdom company but (which is also conceivable) it would not be cost-effective for that ship to be constructed in the United Kingdom.

Could we have a repeat of the (for some) embarrassing ‘blue passports’ situation – where a tender for another prestige Brexit project was awarded to a foreign company?

Although the announcement waxes lyrically about the procurement in that the ‘intention is to build the ship in the UK … help drive a renaissance in the UK’s shipbuilding industry and showcase the best of British engineering around the world’ the government does not know – and cannot know – at this stage whether any value for money tender would result in the ship being constructed in the United Kingdom.

(And as this would seem to be a civil rather than a defence procurement, there are also potential issues about excluding external suppliers from this high-value tender exercise.)

The envisaged timings also seem rather ambitious.

Although carefully worded, this announcement is currently more of a press release than any serious public procurement proposal.

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Finally: £200 million pounds is, for this purpose, not that much – even if whole-life costs are excluded.

Indeed, one could imagine a considerable amount of such a budget being taken up by the to-and-fro of getting instructions and approvals for the design of this bespoke vessel.

Imagine: ‘the prime minister’s office thinks the wallpaper for the main conference room looks too cheap’ and so on.

And the recently reported ‘super-yacht’ of Amazon founder Jeff Bezos is estimated to be costing $500 million – which in sterling would be considerably more than the reported £200 million.

This new flagship may end up being the smallest ship in a harbour, with dot-com billionaires, oil-wealthy rulers and assorted oligarchs waving down at it from their super-duper yachts.

It may well be that to really impress the international business community, we are going to need a bigger boat.

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Prestige public procurement projects often fail – because they are commenced for non-commercial purposes and without thinking foreseeable risks through, and when those foreseeable problems do arise, too much political capital has been invested for the project to then be seen to fail.

The better way, of course, for the United Kingdom to ‘showcase’ here its post-Brexit seriousness about trade and business would be to have a sensible and realistic procurement exercise – including showing that the government is unafraid to pull a project if it does not make commercial sense.

A project that instead ‘showcases’ the commercial ineptitude of the United Kingdom will not help but will hinder our post-Brexit trading future.

But this sort of constructive criticism will be dismissed as doomstering and gloomstering and that voters do not want such negativity.

So those of us who want a more sensible and realistic approach from the United Kingdom to its post-Brexit future are going to need a bigger vote.

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Cock-up vs conspiracy – and law and policy commentary

1st June 2021

Swapping human beings for gods, some people like to see an intelligent design behind anything extraordinary in human affairs.

A thing happens – out of the ordinary course of events – and that thing requires (even demands) a special explanation of how certain people intended it to happen and made it happen.

And sometimes – conspiracies actually do happen.

To always dismiss conspiracies is as misconceived as always seeing them in existence.

But conspiracies are (in my view and experience) rare, as they often require a group of people to act effectively but silently in concert in an emerging and often novel situation.

And so I am not a conspiracy theorist by inclination.

Conspiracies do happen – but often because there has been a cock-up, as it is usually only with a cock-up that a group of people are sufficiently focused and motivated to act silently in concert. 

(By ‘silently’ I mean, with no visible traces outside of that concert, as that would undermine the purpose of the conspiracy.) 

Yes, of course, everyone knows (who should know) Hanlon’s Razor – that a thing should not be attributed to malice that can be attributed to stupidity.

But that is not quite the same – not all conspiracies are malicious (often they are defensive), and not all cock-up result from stupidity but because, to invoke another law, when things can go wrong they will go wrong.

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The particular reason I mention this is, of course, the upcoming Daniel Morgan report.

Others following the independent panel inquiry have put forward possible explanations for why each investigation and prosecution collapsed in respect of the 1987 murder of Morgan.

I do not have any plausible theories – still less any knowledge – as to who was involved when and how.

This is not just safe libel-speak – I have no idea.

It may well be, for example, that there is a plausible and mundane explanation for why each successive investigation and prosecution collapsed.

But such a pattern of failed investigations does require its own investigation – and one of the purposes of the upcoming report is to provide a document-based understanding of what happened and who was involved.

There may be an elaborate conspiracy or sequence of conspiracies – or there may be a sequence of mistakes and improvisations – or there may be a mixture of both.

The best thing to do is to see what evidence is put together by the independent panel, and to see where there that evidence takes us.

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Podcast – discussion with Alex Andreou on the upcoming Daniel Morgan report and its potential significance

31st May 2021

In this podcast released today (but recorded last Friday) I discuss with Alex Andreou the significance of the upcoming Daniel Morgan report – and also the recent attempts by the home office into bullying the independent panel.

Andreou is a superb podcast host, combining a formidable intellect with a luxurious, melodious voice (in contrast to my high-pitched Brummie Wednesday Addams) – and we hope that this will be a useful primer in the run-up to the publication of the report expected in mid-June 2021.

You can hear it on one of the links here.

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Some early reviews:

https://twitter.com/JonathanMolesUK/status/1399319292362035201

 

Did the Home Office blink? – the significance of today’s announcement of a date for the Daniel Morgan report

28th May 2021

Today came the news that the publication of the report on the Daniel Morgan independent panel should be on 15 June 2021.

This is the report into the 1987 death of Daniel Morgan, the collapse of the many subsequent investigations and prosecutions, and the existence of (and the relevance of) any corrupt relationships between the police, the private investigation industry and the press.

The statement of the panel is here and should be read in full. 

This is, of course, welcome news.

It ends the stand-off between the panel and the home office – and, on balance, the home office has given way more than the panel.

The late intervention of the home office – to demand a last-minute ‘review’ of the report – is now unlikely to frustrate the publication of the report.

Delay and blocking

This statement means that, unless something happens to prevent it, there is now a fixed, imminent date for publication.

This should prevent the report being delayed indefinitely by the home office sitting on it during this (supposed) review.

If the objective of the home office was to provide room for delay (or even prevent) the publication of the report, then that objective looks like it has been defeated.

There is a little wriggle-room for potential further delay – but not as much as if there was no date set at all.

Redactions

The statement also deals with the issue of any home office redactions.

Any redactions that the home office insist upon will be identifiable – and so, it would seem, contestable in court.

Each redaction would be an action by the home secretary that could – at law – be looked at by the high court for its reasonableness and relevance.

Any redaction would thereby not necessarily be the end of the matter – but just the prelude for litigation.

The redactions cannot just be silently made, with no one to know.

Again this is a set-back if the objective of the home office was to have room to make such silent redactions.

Forewarnings and leaks

If, however, the home office had as its objective that it would be forewarned of the content of the report, this objective has been achieved.

This means that if – and it is only an ‘if’ – there is anything politically significant in the report then the home office will not have a shock and so will not be bounced.

It also means there is the possibility of leaks from the home office – perhaps to the media – in the days before 15 June 2021.

This is notwithstanding the controlled conditions for the review of the report – which will remind those with longer memories of Robin Cook and the Scott report.

Making sense of the Home Office intervention

As this blog has already averred, there appears to be no good reason for the late home office intervention.

The purported reasons do not add up – and they appear to be improvised and cynical.

As I set out in detail here, the choice of ‘national security’ and ‘the human rights act’ as grounds appear to have been for providing the maximum litigation cover for any home office delay, and not because of any genuine concerns.

I am not a conspiracy theorist by inclination – conspiracies do, of course exist, but usually to hide cock-ups, as only then will a number of people have the motivation and focus to act in concert.

As such I do not think there is any conspiracy between the home secretary and others to try and block or delay or gut the report.

The home secretary may well be (as a lawyer would say) on a frolic of her own in all this, without contact with anyone else with an interest.

It may well be that the home secretary simply did not like the idea of something being published by an independent panel beyond her control or involvement.

But whatever the true motive for the home office’s late bullying intervention, the statement today means that it is more likely than not that we will see the report published in two weeks, and possibly with few if any redactions.

The panel and its lawyers should be commended for facing off this illiberal and misconceived intervention.

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The cynical reason why the Home Office may be invoking ‘National Security’ and the “Human Rights Act’ so as to delay publishing the Independent Panel Report on Daniel Morgan

27th May 2021

There is a stand-off between the home office and the Daniel Morgan independent panel over publication of the panel’s report.

From the perspective of the Morgan family this is unfortunate – and even heart-breaking.

It is a horrible situation.

*

The report will be important – whatever its content – for three reasons.

First: it will be nearest we get to a definitive account of the circumstances of the 1987 death of Daniel Morgan, the private investigator murdered in south London.

Second: it will also set out, as far as possible, how and why investigations and prosecutions kept failing, again and again – and the relevance (if any) of the relationships (corrupt or otherwise) between the metropolitan police, the press and the private investigation industry in explaining those failed investigations and prosecutions.

And third: it will be the nearest we get in practice to ‘Leveson 2’ – the general inquiry into the relationships between the metropolitan police, the press and the private investigation industry, an inquiry which has now been cancelled by the current government.

So far, the coverage of hacking and the other (so-called) ‘dark arts’ have given a lop-sided view of what happened, focusing on the press and newsroom culture – but the press was the customer in the wrongful trade in personal information at the relevant times – the ‘demand-side’.

What is still obscure is the ‘supply-side’ of what happened – especially the role of the police and the private investigators.

Even without the particular circumstances of the death of Daniel Morgan and its aftermath, it all would be an extremely complicated world to understand.

So it is no surprise that panel has spent since 2013 putting this report together.

And now the report is ready to be published.

*

But.

The report has not been published.

The home office is insisting that they review the report before publication and they will not commit to a date for publication.

Under the terms of reference for the panel it is envisaged that the home secretary arrange for the report to be placed before parliament – and that would be the means by which the report would then be published and thereby enter the public domain.

The understanding is (though I am aware of different opinions) is that by placing the report before parliament that it would thereby acquire absolute privilege – which means that nobody can be sued for defamation in respect of the content of the report.

Whether or not this legal analysis is correct, it was certainly envisaged that his would be the procedure and – regardless of the legalities – it is certainly the fitting way for such an important report to be dealt with.

Not many reports are solemnly placed before the parliament by the home secretary.

And although some say the report should just be leaked, this is one report that – perhaps more than any other – should be published ‘by the book’ – as it is ultimately about the rule of law itself.

*

What is the reason for the current stand-off?

We appear not to have the true reason – but we do know this because the reasons so far given do not make sense.

According to one blogpost – which I cannot vouch for as I did not write it and I have not seen the underlying evidence for its assertions – there has been a succession of home office excuses for the delay.

Whether or not there have been earlier home office excuses for the delay, the current reasons are that the home secretary needs time to review the report because of the home secretary’s responsibilities in respect of national security and under the human rights act.

Balderdash.

Codswallop.

Flapdoodle.

Utter twaddle.

These cannot be serious grounds for the following reasons.

First, the home office do not yet have a copy of the report and so cannot know in advance whether a report into the circumstances and aftermath of a murder in a south London carpark in 1987 raises any current national security and under the human rights act issues in 2021.

Second, the report has already been vetted by the metropolitan police legal department who would have been able to identify any such issues – and indeed the home secretary would presumably have to rely on the metropolitan police for this supposed review, given the report deals with police operational issues.

And third, the panel has itself ensured that it has had experienced and extensive legal advice – and have followed the usual ‘Maxwellisation’ process of ensuring what is to be published would be legally sound.

Indeed, the terms of reference envisaged that the emerging findings of the inquiry and the final report could be released directly and freely to the Morgan family, and this provision would not make sense if there was a prior formal home office review stage.

The excuses of of national security and under the human rights act are improvised and artificial excuses to justify delay – and one suspects that there is not a single person inside or outside the home office who has a sincere belief in these excuses.

*

But why these two particular excuses?

At first, it seemed a puzzle.

My best charitable guess was perhaps the home office simply did not want to set a precedent for immediately publishing reports that were outside the scope of the inquiries act.

Yet that did not explain why these two particular excuses were selected.

And then it became obvious.

This is all about litigation – and about providing cover for litigation risk.

National security is one issue that the courts will invariably defer (with nods) to the home office – and if the home secretary makes an assessment then even the current president of the supreme court will say this has to be accorded ‘respect’.

And the human rights act point, a clever one, is that under article 2 of the European convention there is a ‘right to life’ which again, once invoked, means that the courts are unlikely to conduct any balancing exercise.

The combination of these two grounds mean that the home office would be able to resist any judicial review of their delay – for government lawyers would just need to say national security and the human rights act, and a court would be unlikely to intervene.

And – and this is crucial – it also works the other way round: for if the panel threatened to publish the report itself then the home office could use the same two grounds for obtaining an injunction against publication.

Indeed, one suspects that the home office lawyers are currently insisting on formal undertakings from the panel that the panel will not publish the report directly.

*

If my reasoning here is correct – and I cannot think of any other plausible explanation for why the home office has invoked national security and the human rights act – then the home office and its lawyers are engaged in a cynical exercise of making the delay to be litigation-proof.

Such gaming of the judicial process is not necessarily an abuse of process – indeed civil lawyers often use such tactics and even have a big white book packed with ways by which parties can win cases other than on the actual merits of the case.

But if such tactics are legally permissible that does not make them normatively acceptable.

And in these circumstances, such tactics are nothing other than disgusting. 

There is no good reason for this delay – and the brother of Daniel Morgan should not have had to tweet this.

The independent panel report should be published without any further delay.

*****

Hello there.  Thank you for reading – now help keep this blog available for you and others.

If you value this free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

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This law and policy blog provides a daily post for you and others commenting on and contextualising topical law and policy matters.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.