Category: United Kingdom Law and Policy

The task before James Timpson: the significance of this welcome appointment – and two of the obstacles that he needs to overcome

8th July 2024

The appointment of James Timpson as prisons minister is welcome – indeed it is the most welcome appointment to this position that any sensible person can imagine.

But there are a couple of serious obstacles that he will need to overcome.

*

Before those two obstacles are described, however, let us remind ourselves of the Tale of Two Timpsons, for it perhaps tells us something significant about what is now our governing party.

When Edward Timpson – the younger brother of James – was selected as a candidate by the Connservative Party in 2008, this was the infantile response of the Labour Party:

Edward Timpson himself referred to this dreadful, crass campaign in an interview in May this year when he announced he was standing down from parliament:

*

So one thing the appointment this week maybe signifies is that the now governing party is rather more politically mature.

*

And the appointment also signifies a more mature approach to prisons policy.

(We can only hope that one day there is a similarly mature appointment in respect of drugs policy.)

James Timpson has an outstanding record in respect of rehabilitation of offenders, both at his Timpson business and otherwise.

He is, for example, chair of the Prison Reform Trust:

A post he wrote on appointment is worth reading here.

*

“We’re addicted to sentencing, we’re addicted to punishment,” he has said more recently.

“So many of the people in prison in my view shouldn’t be there. A lot should but a lot shouldn’t, and they’re there for far too long.”

This is therefore a sensible and enlightened appointment which deserves hearty applause.

*

But.

Timpson has (at least) two obstacles in his new position – and it cannot be certain that he can overcome them.

*

The first obstacle is that the track record of business people appointed as ministers indicates that they tend not to be successful as politicians.

There was John Davies under then Prime Minister Edward Heath, and he was not a conspicuous success.

There was David Young under then Prime Minister Margaret Thatcher who, despite been adept at telling her what she wanted to hear (“Other people bring me problems; David brings me solutions,” she is quoted as saying), was otherwise not a conspicuous success.

There was Archie Norman under then Leader of the Opposition William Hague, and he was not a conspicuous success (“I was the first FTSE-100 chairman to sit in the House of Commons and I will almost certainly be the last,” he said afterwards).

And there was Digby Jones under then Prime Minister Gordon Brown, who was also not a conspicuous success.

One reason for none of these business people being successful as politicians is that being good at business does not automatically mean that one will be good at politics.

Being good at politics requires specific skills – and there is no particular reason why a business person will have those skills.

That said, James Timpson is more than just a good businessman, he is a committed and knowledgable prison reformer – and this may make the difference where other business people have failed as front bench politicians.

But the reason this really matters in this instance is because of the second obstacle.

*

The second obstacle to James Timpson being successful as prisons minister is the structurally and politically weak position of being a mere minister of state in the Ministry of Justice – both against the Treasury and in respect of the news media.

*

Since 2005 prisons have been under the Ministry of Justice, having been moved over from the Home Office.

To an extent this was a good thing, for the less power the Home Office has over anything, the better.

But it was also a bad thing, for the it turned the Ministry of Justice from what was the old Lord Chancellor’s Department into a “spending” department.

And not only a spending department, but a small spending department – the worst of both possible worlds.

Part of the problem the Ministry of Justice has had since 2005 – under all administrations – is its weak position vis-a-vis the Treasury.

At least the Home Office had some departmental heft and a senior cabinet presence in its battles for public money; the Ministry of Justice almost has none.

And Timpson will not even be head of this department – the Lord Chancellor and Secretary of State for Justice is Shabana Mahmood (another welcome appointment).

Mahmood in turn will be fighting for money for the courts system and legal aid, as well as for probation and prisons. This puts Timpson further back in the queue for public money – to the extent any changes he wants to bring about requires investment.

*

And it will not only be the Treasury that will be need to be won over.

The right-of-centre news media is still wedded to the notion that prison works. They are, to use a phrase, “addicted to sentencing…addicted to punishment”.

It will take only one unfortunate incident of something done by an early released prisoner, and there will be a news-media fire storm.

Such a prospect would be daunting for even a seasoned politician saying prison works.

Those with long memories will recall how prisons failures engulfed David Waddington, one of the biggest hangers-and-floggers ever to be Home Secretary:

When prisons and probation things go wrong they are easy copy for time-poor news media. The screaming headlines will write themselves.

It is one thing to have warm applause and general goodwill on appointment, it is another thing when there is a horrific story on the front pages.

Being a prisons minister who believes in prisons working is hard enough.

Being a prisons minister who wants to achieve fundamental yet enlightened change is far harder.

*

So the task now before James Timpson is immense: to quickly become an effective Whitehall and Westminster politician so as to bring about a change in policy direction, in the faces of both a parsimonious Treasury and potential outright news-media hostility.

He has to bring about fundamental change to Whitehall’s long-settled prisons policy – one of the most difficult ‘asks’ in politics.

Yes, it is a brilliant, heartening appointment.

And if anyone can do it, James Timpson can. But it will not be easy.

One can only wish him good fortune.

***

Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

How the Met police may be erring in its political insider betting investigation – and why we should be wary of extending “misconduct of public office” to parliamentary matters, even in nod-along cases

28 June 2024

***

Comments Policy

*AS THIS IS A LIVE CRIMINAL CASE BE CAREFUL HOW YOU COMMENT*

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

What you need to know about commercial regulation, in the sports sector and elsewhere – for there is compliance and there is “compliance”

25th June 2024

Seven changes for a better constitution? Some interesting proposals from some good people.

24th June 2024

In the Times today there is a letter published from various good sorts putting forward seven practical and easy-to-make steps for a better constitution.

One of the signatories, David Anderson, helpfully posted the letter on Twitter:

*

Of course, changes to form and structure can only take us so far. The biggest problem of recent years has been an underlying lack of constitutionalism from government ministers (cheered and clapped by their political supporters). And until attitudes change, then rules will always be gamed or ignored and discretions abused.

But, there has to be a start somewhere to repair the damage, and these are interesting proposals.

The suggestions appear to be:

  • independent enforcement of a new ministerial code;

  • establishing new systems for managing conflicts of interest;
  • ditto, for lobbying;
  • improving regulation of post-government employment;
  • ensuring appointments to the Lords are only made on merit;
  • ensuring other public appointments are rigorous and transparent; and

  • strengthening the independence of the honours system, including by ending prime ministerial patronage.

The worthies aver that legislation is not necessary for most of these changes but a short bill would create the necessary powers and embed the independence of the ethics and integrity system.

*

Some may say that these proposals are a little “apple pie” – but they would be a move in the right direction, the least that can be done.

Words like “ensuring” and “strengthening” are easy to type – and they are almost as easy to put at the start of a sterling bullet point.

But what is the actual check on misuse? Who in practice will have the power and authority to say “No” to a trespass by a minister of the crown (or by a former minister of the crown)?

The robustness of any regulatory system is not so much in the rules being themselves commendable, but in the rigorous enforcement of those rules and in the ready and realistic availability of sanctions for breach.

In a word: there needs to be tension.

And in our constitutional arrangements, as they stand, only parliament and the courts – rather than third party agencies – have the strength and the legitimacy to check the executive on an ongoing basis, and so for each of these seven laudable aims, one question is how they can be enforced against the government’s will by other strong and permanent elements of the state.

***

Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

The public service of an “Enemy of the People”

22nd June 2024

***

Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Of majorities and “super-majorities”

21st June 2024

The greatest prize that the constitution of the United Kingdom can bestow is a substantial parliamentary majority at a general election.

With such a majority you can be confident to pass major legislation, not worry too much about backbench opposition, and even face down the House of Lords.

And so one of the most remarkable things about the current government – which brought about its own emphatic general election victory in December 2019 by (among other things) “Getting Brexit Done” is how little use it has made of this great prize.

Some people are suggesting that after this next general election (in less than two weeks now) the Conservative may now be out of government for a very long time. Who knows? But if so, that will be a lengthy period for the politically-right-of-centre to kick themselves for not having used their chance to drive through fundamental reforms when they had it.

Many people would find it difficult to name – other than Brexit – one fundamental reform which current government has driven through with primary legislation. The last few Queen’s and now King’s speeches have been limp affairs.

All that political and legislative power – as close to absolute power that our constitutional arrangements can admit – and nothing, or close to nothing.

Given that part of the reason for the Brexit referendum and for then “getting Brexit done” was for the political advantage of the Conservatives, it seems odd. What was the (party political) point? All that chaos and dislocation, for this?

*

In the early 1990s the Conservatives lost their overall majority under John Major and then were out of office from 1997 – and in a long haul, and via a coalition, they eventually gained an overall majority only in 2015.

They promptly threw that away in 2017.

They then exploited an exceptional political situation in December 2019 and got that majority back, and then did nothing much with it.

And now that second chance at an overall majority is about to end.

*

Over at Prospect – please click here to read – I have done a post on the fears of a Labour “super majority”.

But what Tories should fear is not the use of a “super majority” but just the effective use of a sustainable and substantial parliamentary majority.

And that can be quite the forceful thing, not that the outgoing government ever really cared to use it.

***

Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

The strange omission in the Conservative manifesto: why is there no commitment to repeal the Human Rights Act?

12th June 2024

As each party manifesto is published online, and for my own easy amusement, I like to search the pdf for words like “enshrine” and “clear”.

And after that easy amusement, I look for more serious things.

Yesterday the Conservative manifesto was published.

(Many “clears” but disappointingly only one “enshrine”.)

What were the Conservatives were promising (threatening) this time for the Human Rights Act?

 

Doing something to this Act has been a mainstay of every Conservative general election manifesto for as long as I can remember.

But the search return was…

…0/0.

I am a clumsy typist and so I thought: a typo. Let me try again.

And it was still a nil return.

Something must be up with the search function, I thought.

And so I tried “ECHR”.

I even typed out in full the “European Convention on Human Rights” and the “European Court of Human Rights”.

Nil, nil.

How odd.

Could it be that the manifesto actually did not threaten the Act or the Convention?

Well.

A closer look revealed one fairly oblique mention:

Of course, the European Court of Human Rights is not meaningfully a foreign court: it has British judges, British lawyers can appear, British residents can petition the court or appeal cases there, and its caselaw can be relied on in our domestic courts. Foreign law usually is a matter of expert evidence, but Strasbourg case law is part of our own jurisprudence.

It is an international court, of which we are part, rather than a foreign court.

But that is by-the-by.

What is significant is not this sort-of commitment, but the lack of any other promises (or threats).

It is an astonishing, unexpected absence for a Conservative manifesto – perhaps the manifesto equivalent to leaving a D-Day commemoration early.

*

Over on Twitter, Adam Wagner noticed the same:

Of course, it must be noted that government has recently been disapplying the Act on a statute-by-statute basis, rather than making any full frontal attack.

But even taking that point at its highest, one would still expect an explicit manifesto commitment just for the claps and cheers of political and media supporters.

And this is a governing party that needs all the claps and cheers it can get.

It is a remarkable omission.

*

And one suspects it is an accidental omission, for the governing party has little to gain by leaving it out, and something to gain electorally (or at least hold on to) by leaving it in.

If so, the possible significance of the omission is that the Conservative leadership, having got bored with the pretence that the Act will ever be repealed or substantially amended, simply are not thinking about it any more.

Their minds have moved on to other “red meat” for their more illiberal supporters.

But what it also means is that, in the highly unlikely event of the Conservatives staying in government after 4 July 2024, there is no manifesto commitment they can rely on in forcing any changes to the Act through the House of Lords.

What that in turn means is that the Human Rights Act will now be safe for the lifetime of the next parliament, whatever happens at the general election.

And that itself is quite a thing.

***

Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

The predicted governing party implosion in historical and constitutional context

11th June 2024

From time to time the party now known as the Conservative and Unionist party has done badly – very badly.

*

In 1828-32, the old Tory collapsed as what some historians call the British “ancien regime” itself collapsed with Roman Catholic emancipation and the Reform Act of 1832.

Relatively moderate Tories, “Canningites” like Melbourne and Palmerston, went off to join with the Whigs.

But the Tories were back in government by 1834, and rebranded as by Peel as “Conservatives” they had an overall majority by 1841.

*

In 1845-46, the Conservatives collapsed as the Corn Laws were repealed (the “Brexit” of its day.

Relatively moderate Conservatives, “Peelites” like Gladstone, went off to ally themselves with the Whigs.

But the Conservatives were back in government by 1852, and after reinvention by Disraeli they had an overall majority by 1874.

*

In 1905-06, the Conservatives – now allied with the Liberal Unionists – collapsed, in good part because of splits on tariff reform and imperial preference (the “Brexit” of its day).

Relatively moderate Conservatives, “Free Traders” such as the young Winston Churchill, went off to join the Liberals.

But the Conservatives (who formally fused in 1912 with the Liberal Unionists to create the current Conservative and Unionist party) were back in government by 1916, and (posing as a national coalition) they had an overall majority by 1918.

*

And in 1997, the Conservatives lost badly, in good part to splits on the European issue following Maastricht and Black Wednesday (the “Brexit” of its day.

There were a number of defections of (now forgotten) Conservative politicians to the Labour and Liberal Democrat parties.

But the Conservatives were back in office by 2010, and they had an overall majority by 2015.

*

The four examples above have common themes – including the facts that the Tory-Unionist-Conservatives-National Coalition managed to get back into office again, before winning an overall majority at a later election.

There is also the example of 1945, where a heavy Conservative defeat was followed by taking office again by 1951.

*

But there is one theme which is different, and which may make what happens after the imminent general election in 2024 different.

After each of the defeats referred to above, the defeated rump of the party pretty much remained. It did not go off to create a new party to their right.

And so as the pendulum of politics in time moved away from those who had defeated that rump, they were able to take advantage.

Of course, they also often took the time and effort to rebrand or reinvent themselves. And they were able to take advantage of working with others, such as the Liberal Unionists after 1886 and the other parties in national coalitions from 1918 to 1935.

But they never had to deal with a party trying to take their place as the main party opposing the more left-wing party.

*

Here an analogy may be with the Liberals, who last won an overall majority in 1906 – and were then after 1906 outpaced by the rising Labour party.

All because the Tory-Unionist-Conservatives have come back each time before, it does not mean that they necessarily will do again.

*

The “first past the post” electoral system tends to favour established parties with their established brand names – and tribal loyalty and voters’ muscle memory will tend to do the rest.

As such, the Conservatives have an advantage over the Reform party now trying to outpace it to the right.

It may well be that the Reform party do no better than flash-in-the-pan(ic) parties like the “New Party” of 1931-32 and the SDP of 1981-88.

But when the electoral system finally shifts against a party, it shifts – as the Liberals found out after 1906.

And until and unless there is fundamental electoral reform, the Conservatives not only face heavy defeat (which they have survived many times before) but also a spirited attempt by Reform to be their replacement.

*

So, if as widely predicted there is a heavy defeat for the Conservatives on 4 July 2024, will they soon bounce back as they (and their previous incarnations) did after 1832, 1846, 1906, 1945 and 1997?

Or will this be their equivalent to what happened to the Liberals in 1906?

***

Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

The unwelcome weaponisation of police complaints as part of ordinary politics

31st May 2024

Here is a news snippet that showed the sheer dislocation in our politics.

It is from 2022. You may remember the context.

There was always something that seemed wrong about “Beergate”.

But one has to be careful to identify exactly what was wrong.

The proposition that politicians were subject to the law is one which should get universal assent in a liberal society.

And that the course of police investigations should not be subjected to political interference is another fine principle.

Instead the problem was about how the complaint and investigation was weaponised politically.

It appeared that politically motivated complaints to the police were to become a feature of our politics.

And that did not seem right.

Less obvious, however, was what to do about it.

For, as this blog has averred before, not every political problem has a solution.

*

“Beergate” was not to be a one-off.

The tax affairs of Angela Rayner also led to a politically motivated complaint to the police and to a clamour on newspaper front pages.

And, just as with “Beergate”, the serious allegations were found not to warrant any further action.

But again it is less obvious what formally can be done about it. What law could be enacted or policy adopted to make sure It Never Happens Again.

*

This week at Prospect (click and read here) I set out that any solution will have to come from the world of politics and not the legal system.

There should be a self-denying ordinance: a sense that this is not acceptable politics.

And, if that does not work, we can only hope the tactic becomes seen as ineffective, and it falls into disuse.

***

Comments Policy

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

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Thoughts on the calling of a general election – and on whether our constitutional excitements are coming to an end