Category: United Kingdom Law and Policy

Why the Chancellor of Exchequer should read ‘Ghosts of Empire’

13th October 2022

Here is a book that has become strangely, suddenly topical:

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It is not a bad book, and it has many merits.

The book is not a “woke” critique of the British Empire nor is it a sturdy defence.

It is more of an account of the British Empire from the perspective of those who administered it.

And of those administrators, the author is critical.

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“Officials, as I hope to show, often developed one line of policy, only for their successors to overturn it and pursue a completely different approach.  This was a source of chronic instability in many parts of the empire.”

Successors suddenly overturning policy and pursuing a completely different approach is a bad thing.

Chronic instability is also a bad thing.

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“….empires, through their lack of foresight and the wide discretion they give administrators, lead to instability and the development of chronic problems.”

Lack of foresight and instability are bad things.

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“The British Empire is a bizarre model to follow for fostering stability in today’s world.  Indeed, much of the instability in the world is a product of its legacy of individualism and haphazard policy-making.”

Haphazard policy-making is a bad thing.

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“…anarchic individualism led to instability because there was no policy coherence or strategic direction.”

A lack of policy coherence and strategic direction are also bad things

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“Often strong-minded officials and governors would, by a metaphoric sweep of the hand, reverse the policy of decades, thereby creating more confusion and instability.”

Reversing the policy of decades by a metaphoric sweep of the hand, thereby creating more confusion and instability, is a bad thing.

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Our new Chancellor of the Exchequer has suddenly sought to reverse decades of “Treasury orthodoxy” – and summarily sacked the respected Treasury permanent secretary Tom Scholar.

Without sharing the details of the “mini budget” with cabinet the new Chancellor of the Exchequer announced radical changes to established policy, thereby causing uncertainty which was foreseeable.

Off on a frolic of his own, the new Chancellor of the Exchequer single-handedly created wider systemic instability, so much so that the Bank of England is now repeatedly having to intervene so as to prevent meltdown.

Because of the new Chancellor of the Exchequer, we now have repeated U-turns, which are the very defintion of haphazard policy-making.

And because of the new Chancellor of the Exchequer we certainly now have “instability and the development of chronic problems”.

Indeed, the conduct of the new Chancellor of the Exchequer since he took office is an exercise of the “anarchic individualism” which the author of Ghosts of Empire warned us against.

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If only the new Chancellor of the Exchequer had read Ghosts of Empire before taking office.

Oh, he wrote it.

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The Scottish independence referendum case before the Supreme Court

12th October 2022

Yesterday and today there has been a fascinating case argued before the Supreme Court.

The case is about whether the Scottish parliament can legislate not for independence but for a non-binding referendum on the question of independence.

There is no dispute that actual independence is a matter legally reserved for the parliament in Westminster.

Nonetheless the Scottish government has come up with this clever wheeze of saying that even though the union is a reserved matter, there should be nothing to stop it holding an advisory referendum on the issue.

But the really clever wheeze is how they have framed this case so that it is being heard at the Supreme Court even without a bill being presented to the Scottish parliament let alone passed by the Scottish government.

The Scottish government has done this by means of a “reference” – which allows the devolved governments to refer questions directly to the Supreme Court.

This is unusual both legally and constitutionally, as the Supreme Court is normally an appellate court and not a court of first instance.

And so this is a rare occasion where the Supreme Court is acting, in effect, as a pure constitutional court, rather than just happening to hear an appeal of a constitutionally interesting case.

The Supreme Court website sets out the following:

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The reference is framed as being about whether it is open to the Lord Advocate to advise that a bill with such a provision can be brought forward – as set out in the Scottish government’s published case:

This is an ingenious approach.

And nobody knows if it will succeed – not least because there is no precedent to guide us.

The Scottish government needs to jump two hurdles.

The first is the jurisdictional hurdle of whether this is a question that can even be answered by the Supreme Court at this stage.

The second is the substantial hurdle of whether such an advisory referendum is within the competence of the Scottish parliament.

On the balance of probability, any party to litigation needing to jump two such high hurdles is unlikely to succeed.

But nonetheless this is certainly a case to watch with interest – and you should, if possible, watch the footage of the hearings linked to at the Supreme Court page.

My own personal view from having watched some of the hearing is that the Lord Advocate – on behalf of the Scottish government – put the case as well as it could be.

In particular, she explained the legal route that the Supreme Court could take should it want to do so.

In response, the United Kingdom government was less impressive, though this may just be my personal bias.

But little is likely to depend on the oral advocacy – the Supreme Court now has to digest the extensive written documents which have been placed before it by the parties, and that may take months.

So we may have some time to wait.

Whatever the decision, it will be interesting to read the court’s reasoning in this exceptional and potentially consequential case.

For we all know about “advisory” referendums, don’t we..?

***

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

11th October 2022

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

The problem is, in a word, accountability.

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

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

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

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

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

But.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Good Law Project has had another bad day in court – but this decision raises serious questions about enforcing the “public” element of “public procurement”

10th October 2022

The Good Law Project (GLP) has had yet another bad day in court.

Many are uncritical fans of the the GLP – I am not, but neither am I a committed opponent of it either.

But there is something in the recent defeat which I think should prompt wider discussion.

For not only did the GLP lose the case on the substance, it also lost outright on the question of “standing” – that is whether it was in the legal position to bring the case in the first place.

In essence: the GLP was not an “economic operator” adversely affected by the procurement decisions in question, and so it was not able to bring an application for judicial review.

If you read the court’s reasoning on this – from paragraph 498 onwards – you can see the judge’s points.

But.

The law of public procurement is distinct from the law relating to procurement generally because public authorities have to comply with certain public law principles when making decisions – principles with which a private entity making procurement decisions do not need to comply.

This is because those principles – such as transparency, equal treatment and so on – are for the public benefit, and not just the interests of the (potential) bidders.

And if these principles are to have teeth – that is, if they are to make a difference – then they need to be enforceable.

Else they are polite fictions.

An adversely affected competitor may perhaps have a private commercial interest in challenging a botched public procurement decision.

But that will be on private, selfish grounds – and not out of some sense of altruism.

So how are the unselfish public law principles to be enforced?

Given these principles are there to benefit the public generally, should it only be left to when the breach of principle overlaps with the private interests of a disappointed competitor?

One answer is to give bodies such as GLP standing to bring claims.

But the import of this judgment is that such a wide view is not valid.

And perhaps there are questions to be asked about self-appointed interest groups bring such strategic and tactical litigation.

But if not groups such as GLP, then who?

In the European Union there is an easy answer: the European Commission can bring proceedings for breaches of European Union procurement law.

But there is no such body in domestic law: there is not really a public procurement equivalent to the Office of Fair Trading.

Perhaps there should be.

But, with this decision on standing, it is not obvious what the “public” means in “public procurement”.

Yes, the GLP has many critics – and some of those criticisms are valid – but there is also something not quite right about a system of “public procurement” where the public law principles of transparency, equal treatment, and so on, can only be enforced if they happen to coincide with the private interests of a competing economic operator willing to assume litigation risk against a major customer.

(And few – if any – regular government suppliers want to litigate against their main customers, as it leaves a poor impression for the next tender.)

If the courts are going to take this strict view of standing, then the “public” element now needs to be built into the process some other way.

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What Truss’s conference speech did not say

6th October 2022

The speech of the new Prime Minister Elizabeth Truss to her party conference in Birmingham yesterday was a short and fairly unmemorable affair.

To the extent it will be remembered it will be because nothing untoward happened, which is in contrast to the fiasco of the conference as a whole.

But.

The speech was perhaps significant for what it did not say.

There was little of the infantile “anti-woke” culture war stuff.

Brexit was also hardly referred to – just four insubstantial mentions.

There was no explicit mention of the Northern Irish Protocol, let alone any renewed threat to break international law – either by “necessity” or otherwise.

And human rights had no mention, other than a snippet about stopping “European judges” doing things which they probably cannot do anyway.

Lawyers were not mentioned expressly, though accountants were.

From a law and policy perspective there was little in the speech of substance.

And given we are now in the second half of the maximum term of this parliament, with the next general election nearer to us in time than the last one, then there is little opportunity for the Truss administration to do something fundamental to our constitutional arrangements.

Of course, an economics and policy blogger would have a different view.

And economics punditry will benefit from the government’s “growth” policies, even if the economy does not.

Perhaps there is still more constitutional drama – and perhaps even constitutional crises – ahead.

And we seem to do now have a de facto hung parliament – and they are always fun.

The current period of constitutional excitement may not yet be over.

But.

You would not know it from that lacklustre conference speech.

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“Birmingham is a dump”

4th October 2022

The governing party of the United Kingdom is currently imploding in my home city of Birmingham:

https://twitter.com/hoffman_noa/status/1577303194224529408

It makes one think of this:

https://twitter.com/sjmay92/status/1201421957390098432

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There is a certain irony-of-sorts in Birmingham being the venue for this implosion, for two reasons.

First, the modern Conservative party is largely the product of the politics of Birmingham.

Before 1885, the Conservative party had been more-or-less out of office for fifty years.

Peel came and went, and Disraeli had just come and gone.

And then: there was the Irish Home Rule crisis, and the Birmingham politician Joseph Chamberlain and his “Liberal Unionist” supporters crossed the house to sit with the Conservatives, thereby creating the Conservative and Unionist Party.

And it was this combined party that went on to dominate British politics.

(As indeed did the house of Chamberlain, providing a notable foreign secretary and then a prime minister between the wars – both while sitting as Birmingham Conservative and Unionist MPs.)

Until 1945 Labour politicians complained of the Birmingham problem in that this heavily industrialised city kept returning Conservative and Unionist MPs.

And as late as 1992, half the city’s MPs were still Conservative, including the car industry constituencies of Northfield, Yardley and Selly Oak.

And now it looks as if the city is hosting the party’s disintegration.

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Second, Birmingham was where Theresa May gave that speech – after the Brexit referendum.

The necessary implication of her speech was that the United Kingdom was not only to depart the European Union, but that it would also leave the single market and customs union.

These were the famous red lines, which meant that the United Kingdom – or at least Great Britain, if not Northern Ireland – was locked into a Brexit that would mean being outside the European Free Trade Area.

This was not a necessary interpretation of the referendum result – other interpretations were possible.

But it was that interpretation which has since shaped the course of our politics generally, and of the Conservative party in particular.

And it started in Birmingham.

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A few days ago, a visiting Conservative activist was rude on social media about Birmingham:

In some ways our correspondent is correct.

Birmingham is where the Conservatives are dumping policies such as the abolition of the 45 pence tax rate.

Birmingham is where the Conservatives are dumping any sense of collective responsibility and any reputation for governmental competence.

Birmingham, it seems, is where the Conservative party as a serious political force will itself be dumped.

Birmingham is a dump.

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Do we now have a hung parliament?

3rd October 2022

This is not a partisan blog, and long-time readers will recall that I was a fan of the hung parliament of 2017 to 2019.

My sentiments were, however, not shared by many in politics and that parliament came to an abrupt end in December 2019.

This was when the opposition parties – stupidly in my view – agreed to an early general election, which turned out to be on the issue of “getting Brexit done”.

And so the Conservatives got a majority of eighty.

To a large extent all what has happened in British politics since 2019 is not so much the fault of Conservatives, but the fault of the opposition parties in allowing it to happen.

But.

Just over halfway through the maximum length of this parliament, we seem again to have somehow reverted to what some now call a hung parliament.

Chris Bryant has got a point.

The governing party now, in reality, comprises the fifty Conservative Members of Parliament who voted for Elizabeth Truss in the first round of the recent leadership campaign, and about a hundred or so more who have or want ministerial office.

On the government backbenches you have figures such as Michael Gove and Grant Shapps, as well as Rishi Sunak and indeed Boris Johnson, and you also have the European Research Group and the Northern Research Group.

The governing party in the House of Commons is currently an unstable coalition.

This was most obvious in how the U-Turn in the abolition of the 45p rate came about.

Gove and Shapps said they would be against it, and so it was dropped.

Those Truss supporters who fantasised about what they could do with an eighty majority are going to be disappointed and frustrated with the actuality.

Not least because the majority has gone down because of by-election defeats.

Thirty-or-so Conservative backbenchers can now veto government policy – and they know that they can get their way.

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Johnson warned us against a hung parliament in 2019.

But it looks like we have got one anyway.

Let us hope it lasts, and that the government does not again get carried away with forcing things through just because it can.

Why and how this has come about will fascinate political commentators.

But from a liberal constitutionalist perspective, it is to be welcomed.

We are governed better when there is real parliamentary accountability and scrutiny – when the government cannot just assume it will get legislation through the commons.

Perhaps party discipline will reassert itself in the governing party, bringing this situation to an end.

Perhaps.

But in the meantime, let us welcome what appears to be a hung parliament again.

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FoI requests regarding the “absolutely devastating” legal advice

30th September 2022

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

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

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

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

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

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

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

It makes you think of this classic Onion story:

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

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But.

From time to time, FoI requests may be useful.

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

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

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

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

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

As the committee stated:

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

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

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

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

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

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

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

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

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

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

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

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It is not “local journalism”, it is journalism

29th September 2022

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

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

 

The interviews were excruciating.

And they were very effective:

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

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

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

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

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

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

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

But.

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

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

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

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

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

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

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

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

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

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

Accountability leads, generally, to better government.

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

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

***

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Fantasy and Policy

28th September 2022

Today, it is reported, there were almost mass insolvencies of pension funds:

Pension funds – like constitutional law – should not be exciting.

Pension funds should be dull.

Something wrong is happening.

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There is a sub-genre of fantasy literature which uses the literary device of a portal.

You go though a wardrobe, or over a rainbow, or down a rabbit hole, or past the second star on the right.

And you are then in another world, where certain fundamental elements are different and strange.

Recently British politics has been unusually volatile, but at least it was within certain familiar parameters.

We had the Regency smugness of David Cameron’s administration; the misplaced Victorian earnestness of Theresa May’s; and the Edwardian charlatanship of Boris Johnson’s.

All bad in their way, but you could comprehend what was wrong about the administration and its approach to law and policy.

But the administration of Elizabeth Truss – despite some early but misleading indications of pragmatism – is of a very different type.

*

It must have seemed so simple, only a few days ago.

Treasury orthodoxy could be cancelled easily – and the permanent secretary Tom Scholar was sacked.

Tax cuts could be announced.

And, at a stroke, the British economy would be “unleashed”.

The new chancellor Kwasi Kwarteng told the House of Commons that the government would “release the enormous potential of this country”.

But.

The problem with words like “release”, “unleash” and, indeed, “unchained” is that they are often mere substitutes for policy.

By using such words you are presupposing that there is a thing which is being constrained that only requires the constraints to be removed.

It is, in its way, a form of magical thinking.

And it must have seemed straightforward to the new administration that all that was needed was for tax cuts to be announced and, hey presto and abracadabra, growth would be be produced:

One suspects that even now at Ten and Eleven Downing Street, the Prime Minister and Chancellor do not understand why the Friday statement has had these consequences.

They did the magic things and said the magic words – powerful words like “release” and “unleash” – but what has actually been released and unleashed is not what they wanted.

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You could say that the problem is that Truss and Kwarteng are being ideological.

But many practical and effective politicians have ideologies: Clement Attlee and Aneurin Bevan with the creation of the National Health Service, or Margaret Thatcher (at least in her early premiership) and Norman Tebbit (whose trade union reforms are pretty much still in place forty years later).

What is different with the current administration – and this is apparent even after a few weeks – is not that it has an ideology, but that it has nothing else.

There is no engagement with the real world as it is, and no understanding that there is even a real world outside with which to engage.

The fundamental elements of their political vision are different and strange: this is Narnia, this is Oz, this is Wonderland, this is Neverland.

We can enter their world, but they have no notion of ours.

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Portal fantasies often end with the intruding hero(es) eventually coming back to this world – sometimes changed, sometimes not.

The other world usually carries on, just as before – but without the Pevensie children, or Dorothy, or Alice, or Wendy.

Sometimes, however, people from our world get stuck there, perhaps lost or disguised, unable to escape.

We are currently stuck with our fantasy government, perhaps for the next two years until a general election.

Brace, brace.

We are not in Kansas anymore.

***

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

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