Category: United Kingdom Law and Policy

What explains the timing and manner of the Chagos Islands sovereignty deal?

20th October 2024

Towards resolving a puzzle about how and when the decision was announced

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Perhaps the best place to start for a blogpost or any other writing is a sense of puzzlement. A thing does not immediately make sense, and so you find out more and try to work it out.

The news about the Chagos Islands provided such a puzzle.

Why did the United Kingdom this month decide – if that is the correct word – to transfer sovereignty of the Chagos Islands to Mauritius?

Over at Prospect is an attempt at answering this question. Please click here and read the post.

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That this has been a long-lasting dispute is not, by itself, a reason for it to be resolved. Disputes can last a very long time and may never be resolved.

And that the United Kingdom was on the backfoot both legally and diplomatically also, by itself, did not explain the move.

The United Kingdom – if it was able – would have carried on playing for time.

So what happened?

Well it looks like the matter was taken out of the hands of the United Kingdom – even though it is nominally the sovereign power.

The explanation which best fitted the available evidence was that the United States and Mauritius did a deal and then told the United Kingdom that it had to be announced.

What prompted this explanation was something said in the House of Commons debate by the Speaker – which seemed more significant than anything said by minister or backbenchers (emphasis added):

This indicated that this excuse had been given to him by the Foreign Office – either by the minister himself or by a civil servant.

And although, of course, there are upcoming presidential and congressional elections in the United States, there happened to be a general election coming up in Mauritius.

Taking this evidence along with the (very) warm, detailed statement from the United States indicated that both Mauritius and the Unites States were well prepared for this news, even if the United Kingdom was not:

The lack of preparatory media briefing (and leaking) by the United Kingdom government also then made sense. Usually there would be attempts to frame such upcoming news, especially if it looked bad for the United Kingdom.

And because the United States were (so) happy with the news, this rather took the wind out of the sails of those who have been warning that transferring sovereignty would be against American interests or undermine the strategically important base on Diego Garcia.

Warnings such as this one from Johnson in 2023:

An article which, if you read carefully, shows that the former foreign secretary (and prime minister) had an inkling that such a direct deal was in the offing (emphasis added):

The problem is that the highlighted admission rather undermines the alarmism of the article’s title. The Americans were relaxed about a direct deal as long as they retained a long lease for their base.

And it seems the Johnson article correctly describes that the Mauritians and the Americans indeed cut out the “middleman” – and that is the role to which the United Kingdom was reduced, even though we were (nominally) the sovereign power.

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A look at the relevant public domain materials also shows how weak the United Kingdom’s position was becoming.

A little-known 2015 arbitration ruling was devastating in its detail:

(Legal geeks may appreciate how that tribunal deals with estoppel in paragraphs 434 to 448.)

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It was also striking how support for the United Kingdom fell away once the International Court of Justice delivered its 2019 “advisory” opinion.

In 2017, the United Kingdom had a plausible-sounding nod-along objection to the court taking on this case.

But once the court handed down its opinion, it seemed that plausible objection fell away. Support vanished.

Even most commonwealth members, as well as other former colonial powers and/or European Union member states, could not bring themselves to vote with the United Kingdom.

The United Kingdom had been shown to the UN assembly to be in breach of its general decolonisation obligations: and so this was not just another bilateral territorial dispute.

And so the United Kingdom’s position was legally and diplomatically weak: so weak that, at a time of the choosing of Mauritius and the United States, a supposedly sovereign power had to announce during recess it was ceding sovereignty.

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Happy birthday, Supreme Court: the fifteenth anniversary of the United Kingdom’s highest court

1st October 2024

In the main courtroom of the Supreme Court there are the benches – really desks – where the Supreme Court judges sit, and at each place there is a microphone for each justice, with a button they can press when they want to speak.

But at the head of the bench, at the centrally placed desk, there are two buttons: one for the presiding justice to press when they want to speak, and one (I am told) which they can press to turn off all the other microphones in the courtroom – justices and advocates alike.

If you ever want to think about true judicial power, think of that second button.

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I know this because I have had the privilege of judging moots in that seat and in that courtroom. It is a splendid space, adapted from the old (indeed, olde) magistrates’ court, and still with some of the old (olde) furnishings, with an imposing portrait of that famous eighteenth-century magistrate John Fielding. But it is also up-to-date, with discreet working electronic paraphernalia and – again showing true judicial power – working radiators.

You couldn’t want a more “common law since time immemorial” feel to a modern courtroom if you tried. The only fault is the garish carpet, which must be the worst-looking carpet in England, and perhaps even the worst in the world.

There are courtrooms over at the Royal Courts of Justice that are superficially more imposing – but they are really museum pieces, without working radiators and often without any working electronic paraphernalia.

Anybody with experience of the variety of English courtrooms, up and down the country, cannot but think that it would be a good thing if more courtrooms were up to the standard of those in the Supreme Court. It is a great space, but it is not a representative one.

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When the Supreme Court was established fifteen years ago, it was a sensible decision to house it in a new building, and the choice of the old (olde) Middlesex Guildhall on the side of Parliament Square was inspired – historically, architecturally, and geographically.

From an Anglocentric perspective, it is as if the four elements of the ancient English state are on the four sides of the same public square: the Palace of Westminster (parliament), Whitehall (executive), Westminster Abbey (the established church), and now the Supreme Court.

Before then, the highest court was housed in a corridor somewhere in the Palace of Westminster, and was in form as well as in location the judicial committee of the House of Lords.

The notion was that the appeals that went to the House of Lords were heard by the judicial committee of that house. The committee could – and indeed was until the days of the Blair premiership – attended by the Lord Chancellor, a cabinet minister who was also entitled to sit in a judicial capacity.

As a system it sort-of-worked, even though it was conceptually untidy.

And so when the Blair government proposed a new supreme court to replace the judicial committee the opportunity was taken to assert the independence of the court with a new building. It also had its own budget and even it own website url (and not any gov.uk url). It even had its own remarkably impressive law library. And it is a lot easier to visit than the old judicial committee.

In terms of symbolism there could not have been a more emphatic (and welcome) break with the muddle-through of the old House of Lords regime.

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But.

Changes of form are not always changes of substance.

In many ways the new Supreme Court does much the same work as the old House of Lords committee – with a high proportion of impossibly dull complex tax cases.

And it is often the same sort of judges – and at one point recently the twelve-judge court had four Davids. (And Davids really do not need such disproportionate representation.)

Yet there are a couple of interesting changes.

First, the court is taking its role seriously as a constitutional court. This is in part because part of the constitutional reforms fifteen years ago was that it would hear certain devolution-related applications in addition to its main workload. It is also because circumstances meant that it had to deal with controversial constitutional cases, such as the two Miller cases.

But it has not got carried away – as a sequence of cases shows the court has firmly refused to extend its role in respect of policy decisions. The court will not duck the big constitutional cases – but it certainly will not decide them in a way that would always please activist liberals.

And second, the court has done as much as it can to make its hearings and judgments accessible ot the public. Its website has a great deal of detail on each upcoming case – sometimes even including documents such as skeleton arguments, video footage is made available of hearings, and the judgments are handed down with useful summaries.

Over time, as generations of law students (and interested lay people) come and go, this accessibility will be a gradual boon to the public understanding of law. The effect will not be dramatic and immediate. But having ready access to such materials can only have a positive effect.

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The court is not perfect – and there still needs to be fundamental reform of the parallel judicial committee of the Privy Council which also sits in the same building with the same judges.

But fifteen years on, it deserves a couple of cheers from those who take the separation of powers and judicial independence seriously.

And perhaps the court could mark the anniversary by, say, treating itself to a brand new carpet.

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Political accountability vs policy accountability: how our system of politics and government is geared to avoid or evade accountability for policy

24 September 2024

Over at Bluesky, the German writer and historian Helene von Bismarck, an acute observer of British politics, posted this interesting question:

“One question I have been asking myself for many years about UK politics: Why does it – regardless of who is in government – appear to be this hard to solve problems & get things done? Schools, the NHS, defence procurement, etc. Lack of money, you (probably) say. But surely this isn’t all of it?”

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One answer, of course, is that there is a lack of accountability.

On the face of it, however, there is a great deal. of accountability in the politics of the United Kingdom.

There are general elections, where the government of the day can fail to obtain a majority – as in 1997, 2010, 2017 and 2024 – as well as by-elections and regional and local elections which often (are said to) give governments a ‘bloody nose’ (or something).

And between general elections, Prime Ministers can come and go – as in 1990, 2007, 2016, 2019, and 2022 (twice).

And then, at the levels below Prime Minister, ministers come and go, often with undue frequency.

We also have the theatres of Prime Ministers Questions and the various political shows on television and the radio (and increasingly with podcasts), and we have a well-connected and ambitious lobby of Westminster journalists.

And so, superficially at least, we have a near-constant buzz of accountability – almost all day, every day.

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But.

If the word “accountability” is taken to mean (as it should be) that the accountable person can be required to give an account of what they are doing, then things look rather different.

For in the United Kingdom we have a great deal of political accountability, we have far less policy accountability.

And by policy, it is meant the formulation, implementation and administration of things by government.

The theatres of political debate and discussion do not often go to the substance of policy – and often policy only seems relevant to the extent that it offers a ready “gotcha” against a hapless or hopeless minister.

The lobby system of journalism – and there are some outstanding lobby journalists – necessarily requires a focus on the politics of Westminster, rather than on what is happening in Whitehall – and still less on what is happening outside SW1.

The doctrine of individual ministerial accountability provides a mutually beneficial pact where a minister can (plausibly) say that they were not aware of something while officials escape routine accountability for what they do.

Parliamentary questions are easily evaded either in written or oral form, with no sanction for tardiness or non-compliance.

And as for Freedom of Information, the departmental section 17 letters refusing disclosure are perhaps the most dismal and insincere – if not outright dishonest – official documents in the history of our domestic bureaucracy.

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One illustration of how weak policy accountability is in the United Kingdom are the now (all too frequent) public inquiries.

These inquiries – sometimes long after the events being investigated – often do little more than what could have been done at the time, if the organs of the state had had the necessary powers and the requisite will.

To take one glaring example: the Covid inquiry is forcing politicians and officials to give an account – ie provide accountability – about everyday decision- and policy-making during the pandemic.

This should have been done in and by parliament at the time.

Many revelations that come out of that and other inquiries is an indication of the weakness of our traditional forms of accountability.

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Why is all this so?

Part of the reason is legal(istic) – inquiries have formal legal powers which are not generally available to (say) parliamentary committees and still less available to journalists.

But the main reason is there is no real incentive for government and parliament and officials and the media to have it any other way: no careers will be benefited, there is no electoral advantage, there are no extra viewers or listeners, and there no more newspapers sold (or fewer copies left unsold).

And the primary reason for this lack of incentive is, well, us.

If voters (and viewers and readers) wanted more real-time policy accountability then there would be career, commercial and/or electoral advantages in there being more policy accountability.

But that would mean us taking policy seriously, which is dull and complicated.

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There are, however, grounds for some optimism.

Parliamentary select committees – especially in their online manifestations – are becoming increasingly impressive in what evidence is made publicly available in their ongoing inquiries.

The House of Commons library also make their outstanding briefings available to the public as well as to parliamentarians.

The decline in specialist journalists is – though only to a limited extent – being offset by specialist commentators – on Substack or elsewhere.

But, even taking all these positive points at their highest, there is generally little or no incentive for there to be real accountability, as opposed to superficial (and theatrical) accountability.

And so the massive policy problems identified by von Bismarck in her post do not have ready solutions – though, no doubt, there will one day be a scathing public inquiry about each of them.

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Miscarriages of Justice: the Oliver Campbell case

21st September 2024

Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness

21st August 2024
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One striking – and troubling – aspect of the legal case of Shamima Begum is the artificiality of the United Kingdom state maintaining that she ever had the real prospect of going to Bangladesh.

The removal of her British citizenship was predicated on her being able to take the citizenship of Bangladesh, a country which she had never visited and to which she had no meaningful connection.

By way of background, this is from paragraph 1 of the relevant Court of Appeal decision:

“On 19 February 2019 Shamima Begum, then aged 19, was deprived of her British citizenship by a decision under s 40(2) of the British Nationality Act 1981 (“BNA 1981”), made personally by the then Secretary of State for the Home Department, the Rt Hon. Sajid Javid MP. Her appeal to the Special Immigration Appeals Commission (“SIAC”) was dismissed on 22 February 2023.”

Adding:

“Ms Begum was born in the United Kingdom on 25 August 1999. She was brought up in Bethnal Green in the London Borough of Tower Hamlets. Her parents are of Bangladeshi origin and, through them, Ms Begum had Bangladeshi citizenship until her 21st birthday.”

The Court of Appeal then noted:

“SIAC observed that Ms Begum’s case under this ground was straightforward: even if the deprivation decision did not render her technically stateless, it had that practical effect. One way or another, she could not go to Bangladesh, and that meant there was nowhere for her to go […].”

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We are told by the Court of Appeal that material before the Home Secretary included a reference to this effective statelessness:

“On 18 February 2019 a ministerial submission with accompanying documents was received by the Secretary of State. The submission recommended that the appellant be deprived of her British citizenship on the basis that it would be conducive to the public good due to the threat that she was assessed to pose to UK national security. […]

“One of the annexes to the submission, dealing with the potential risks to Ms Begum of mistreatment contrary to Articles 2 and 3 of the ECHR, expressed the view that although there was a risk that individuals in Bangladesh could be subject to conditions which would not comply with the ECHR, the Secretary of State may consider that there was no real risk of her returning to Bangladesh. Neither the submission nor the annexes to it expressly considered the issue which forms the basis of Ms Begum’s third ground of appeal before this court, that if deprived of British citizenship she would be “de facto stateless”.

“The Secretary of State agreed with the recommendations in the submission on 19 February 2019.”

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This was an eye-catching push-pull you point: on one hand, the Home Secretary was legally safe in taking away her British citizenship as Begum would in theory be able to go to Bangladesh but, on the other hand, he was also legally safe because in practice she could not do so.

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One of the grounds of appeal of Begum before the Court of Appeal was:

“De facto statelessness: The deprivation decision was unlawful on account of a failure by the Secretary of State to have regard to whether the decision to deprive would render Ms Begum de facto stateless on account of her de jure Bangladeshi citizenship being of no practical value to her. SIAC correctly concluded that this was a mandatory relevant consideration to which the Secretary of State was required to have regard. However, SIAC erred in finding that the matter had been properly considered.”

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In one paragraph, the Court of Appeal rejected this ground of appeal:

“It is not necessary to decide what might be difficult questions about whether the concept of “de facto statelessness” is established in international law. The point in layperson’s language is that Ms Begum had nowhere else to go. Until her 21st birthday in 2021 she had Bangladeshi citizenship by descent but there was no realistic possibility of her being able or permitted to enter that country. The appendix to the ministerial submission made this clear, though in the context of whether she was at risk of treatment contrary to ECHR Article 2 or Article 3. As SIAC found at [302]-[305], this was sufficient to bring the issue to the attention of the Secretary of State, if he did not know it already. Despite knowing that she had nowhere else to go, in all practicality, the Secretary of State nonetheless decided that to deprive her of her British citizenship on grounds that to do so was conducive to the public good and in the interests of national security. He took that matter into account. The decision cannot be impugned on the basis that he did not do so. On the basis of the open arguments applied to the evidence that we have seen in open and closed, Ground 3 fails.”

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In essence: it did not legally matter that the deprivation of her citizenship in fact (de facto) rendered her stateless, as long as (a) in legal theory (de jure) she was not stateless and (b) the minister considered this fact, and made the deprivation order anyway.

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Begum then applied to the Supreme Court.

Some thought this would be a good case for the Supreme Court to engage with this extraordinary power of the UK state to take away a person’s citizenship – in some ways a person’s most basic legal right – in circumstances where in reality they would be rendered stateless, but as a legal fiction they would not be.

It could have been a Supreme Court case for the ages.

But, no.

In their short published reasons, they decided not to hear the appeal on his and her other grounds. On de facto statelessness, they provided these three paragraphs (emphasis added):

“The fourth ground of appeal concerns the fact that the deprivation decision resulted in the Appellant’s becoming de facto stateless, as there was no reasonable prospect of her being admitted into Bangladesh, of which she was a citizen. In this regard, it is argued that the Secretary of State failed to have regard to all material considerations.

“Both courts below found on the evidence that the Secretary of State had taken into account the fact that the deprivation decision would render the Appellant de facto stateless. There is nothing to indicate that that conclusion is vitiated by any error of law. The Appellant’s submission that the Court of Appeal failed to distinguish between the fact of de facto statelessness and the significance of that fact (the latter, rather than the former, being argued to be the mandatory relevant consideration) does not appear to the panel to raise an arguable point of law.

“The panel notes that the Appellant does not challenge the existing law that the prohibition, under section 40(4) of the British Nationality Act 1981, on making a deprivation decision which would render a person stateless, refers to de jure rather than de facto statelessness. Nor is it argued that the Secretary of State’s decision to make the deprivation decision, notwithstanding that its effect would be to render the Appellant de facto stateless, was unlawful because it was perverse.”

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Begum may apply now to the European Court of Human Rights – a possibility which the Supreme Court alludes to elsewhere in its decision: “Whether the Convention law should be developed as the Appellant argues is a matter which can only appropriately be decided by the European court, as the authoritative interpreter of the ECHR. It is not the role of this court to develop the law under the Convention well beyond the principles established by the European court.”

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But overall, this does not seem a satisfactory position.

There are many people in the United Kingdom who either through their parents or otherwise could, in theory, become a citizen of another country – even though they have no real connection with such a country.

The power used in the Begum case cried out for judicial consideration at the very highest level in our judicial system, but the Supreme Court appears to have shrugged – and, at best, passed the matter to Strasbourg.

Of course, we do not have all the facts about Begum – there may be evidence not in the public domain which justifies her exclusion; we do not know.

But the general principle about removing British citizenship requires anxious scrutiny by our highest court.

In 2020-21 the Supreme Court decided various technical points about Begum’s case.

It is a shame that the Supreme Court has now decided not to hear the substantive issue in her case.

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Lucy Letby and miscarriages of justice: some words of caution on why we should always be alert to the possibilities of miscarriages of justice

19th August 2024

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This week’s skirmish between the European Commission and X

17th August 2024
Law and politics are ultimately about how power is allocated and exercised within a given complex society. In particular, law and politics are about how such power is legitimised and about how it is checked and balanced.

And from time to time you will have visible contests between those with different types of power. The job of law and politics is then to regulate such contests so as to ensure that tensions do not harden into the contradictions that undermine the health of a polity.

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These contests of power, when they happen, are fascinating.

Over at Prospect I have written a post about one such contest: the European Commission v X.

The latter has considerable media power: so much so that the content of its platform can often have a considerable real-world impact.

But the former also has considerable power – in the formulation of the laws that apply to the platform in the European Union and in the application of those laws in particular circumstances.

It is quite the stand-off.

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When the European Commissioner responsible for the Single Market tweeted a letter last week, it reminded me of an earlier stand-off.

It evoked the stand-off in 1930-31 between the then government of the United Kingdom and the then popular press over tariff reform and imperial preference (the Brexit issue of its day).

That was a stand-off which, at least in the short-term, the government won.

(Tariffs were introduced later in the 1930s, though not directly because of media pressure.)

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Often these tensions are hidden and managed out of public view, and so it is always interesting – and instructive – when they are done in public.

Something is up.

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And out the other side? The possible return of serious people doing serious things in law and policy

10th July 2024

There is a sub-genre of fantasy literature which can be called the “portal” story.

Here someone goes through a portal into a world similar to but also profoundly different from our own.

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Since around 2015 we have in the United Kingdom been on our own political portal (mis)adventure.

We have collectively gone through the wardrobe, over the rainbow, down the rabbit hole, and past the second star on the right.

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But now we may be emerging from our disconcerting expedition.

Over at the department of culture, the new secretary of state announces the end of the “culture wars”.

Obviously such a unilateral declaration of maturity and sanity can only have so much purchase. There is a great deal of what may be called the media-political complex which is wedded to various divisive talking points, especially given falling circulations and memberships. But for ministers to be moving on from such relentless infantilism is a start.

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And in the province of law and policy – the staple of this blog – there seems to be a significant change.

Across the Ministry of Justice and the law officers’ department there have been impressive appointments.

We have a heavyweight KC as Attorney-General – the government’s chief legal adviser.

His deputy, the Solicitor-General, is an experienced and highly regarded environmental and planning lawyer, which suggests that it may not only be activists who will be taking a strategic view of what can be done with the law.

And there is the refreshing appointment of James Timpson as Prisons Minister.

On the face of it, these look like serious people capable of doing serious things.

If so, this would be marked contrast to the antics of various law officers and justice ministers over the last few years, from banning books in prisons to tweeting during live police investigations, and from performative dud legislation to leaking government legal advice.

Fortunately for the rest of us, the former governing party, now reduced to a rump barmy army in opposition, are embarking on their own awfully big adventure – and their screaming and hysterics should become fainter and fainter as their asteroid hurtles from the orbit of power for a while.

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One cannot be certain that things back on Earth will change, and so it is important not to get ahead of ourselves: the new ministers may disappoint us just as their predecessors did – even if the disappointments will be of a different kind.

But that said, it is going to be strange to comment on a Ministry of Justice and the law officers when they are taking their tasks seriously.

To adapt the words of the eminent jurist Dorothy Gale:

“Toto, I’ve a feeling we’re not in Oz anymore.”

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What if a parliamentary candidate did not exist? The latest odd constitutional law question which nobody has really thought of asking before

9 July 2024

What would be the legal position if a parliamentary candidate did not exist?

A non-existent candidate, yesterday.

This question is posed because of concerns currently expressed as to whether Reform Party candidates actually existed or not.

In this internet age, there will be suspicions that a person does not actually exist if they have no social media or other online presence. This sad fact probably tells us more about this internet age than it does about any (wise) person who has kept themselves offline.

A dishonestly presented fictional candidate would be such an extraordinary event at a general election that there must be a better explanation than it having happened. On this basis, this post makes no allegations of wrongdoing in any way. Instead, this post is for the public understanding of law.

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However, such fictional candidates are not without precedent.

One tweeter unearthed this example from 2017:

The BBC news report indicates that the defendant was convicted not of any offence under election law, but under the general fraud offence of using a false instrument with intent:

Another tweeter, however, has pointed out that there is a corresponding offence under section 65A(1)(a) of the Representation of the People Act 1983:

This provides that it is a corrupt practice if a person causes or permits to be included in a document delivered or otherwise furnished to a returning officer a statement of the name or home address of a candidate at the election which he knows to be false in any particular.

A person providing a name and address of somebody who does not exist would presumably be caught by this offence.

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The one “person” who cannot be prosecuted, of course, is the fictional candidate.

This is because they do not exist.

This is not just an amusing point, for much of the Representation of the People Act (understandably) presupposes the candidate does actually exist as a person. For example, here is the power for an election to be voided for general corruption:

Would this section (and other similar sections) still apply if there was not actually “any person” for the purpose of that clause?

The determination of that question would be an interesting judgment to read.

Would the lack of a person as a candidate be the basis for any election to be voided? If so, how? And, in what circumstances?

The wording of various provisions of the 1983 Act may have to have (non-existent) words implied in to them (“purposeful interpretation” as it is called) so as to deal with such a (non-existent) candidate.

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Another interesting point is that it seems that proof of identity for a candidate may be now practically at a lower threshold than for an elector.

Here is the Electoral Commission guidance for returning officers (hat-tip):

That footnote “2” in turn refers to a couple of cases.

Of the first case from 1977, Westlaw tells us that it is authority that where there is nothing on the face of the nomination paper to raise a doubt as to the identity of the nominee, a returning officer is not entitled to investigate the authenticity of the name appearing thereon before deciding whether to accept or reject it.

(The second case, from 1975, turns more on the wording of the sub-rules of a local government statute.)

If this 1977 case is authority for the general position stated by the commission then it does seem a remarkable discrepancy that a voter has to prove their identity whilst a candidate does not.

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The above post is based on research overnight, and on the help of other tweeters (which I gratefully acknowledge), as this simply is not part of my general constitutional law knowledge. It is not a question I have ever considered before.

As such, it would be wonderful if you would supplement (or correct) the above, if you have expertise in this area.

And, if you can, you do not need to prove your identity.

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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.

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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:

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

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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.

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“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.

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But.

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

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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.

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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.

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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.

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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.

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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.

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