Category: United Kingdom Law and Policy

Why who controls the flow of evidence is crucial in any public inquiry

30th May 2023

Techies have a phrase for the principle: GIGO – garbage in, garbage out.

In essence, outputs tend to depend on inputs.

With legal(istic) processes – trials or inquiries – what this principle means is that the outcome of the process can be shaped (and often determined) by what is put in.

In the context of civil litigation, it is often possible to see which party is likely to win once all the evidence has been disclosed by the parties.

Sometimes, a civil case will still go to court for a trial, for one reason or another, but almost all civil litigation comes to an end before that final stage.

Inquiries are, of course, different to litigated cases – not least in that in an inquiry legal rights and liabilities are not determined, and there are not really remedies or sanctions.

Instead, an inquiry will set out the facts (as it has found them) in a report, and may make recommendations – and sometimes an inquiry can also point to (non-legal) culpability.

An affected party, therefore, has an interest in shaping the outcome of an inquiry.

And the most direct way an affected party can shape the outcome of an inquiry is by, in turn, shaping the flow of information available to that inquiry.

In practice, this comes down to what evidence that affected party is obliged to disclose to the inquiry – and to what evidence it can prevent other parties disclosing to that inquiry.

GIGO.

But.

The public interest is in the inquiry having access to all the relevant materials, so that its findings and any recommendations are as sound as possible.

The scope of what is relevant is, in turn, determined by the terms of reference (TOR) of the inquiry.

This means there is often a contest between what an inquiry wants to see and what an affected party wants to provide.

And this is the case for any affected party.

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But.

There is an additional practical problem when one of the affected parties is the government.

For the government is usually very good with inquiries.

The government – especially government lawyers – are skilled and experienced in dealing with inquiries.

This is not a surprise, if you think about it: the one affected party common to many matters for which there is a public inquiry is, well, the state.

The other affected parties will come and go, but the state – especially central government – will be involved in inquiries again and again.

And with this skill and experience comes accumulated insight – especially in how to manage the inquiry as a whole.

The knack is to think backwards from the outcome you want the inquiry to reach, and to then think through about how to shape the process at each stage.

That is why the early stages in any inquiry – the setting of the terms of reference and the disclosure exercises – are so fundamentally important.

For although unexpected things can – and do – happen during the course of an inquiry, the findings of an inquiry and recommendations – and the allocation of any culpability – will usually be largely determined by what happens at the early initial stages.

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This is why the current contest of the government and the Covid Inquiry is profoundly important.

The government wants to itself decide what evidence is relevant to the Inquiry.

Part of this stance is because it appears the government was wrong-footed (or were not thinking or were distracted) when the very wide terms of reference were set.

Had the terms of reference been tighter then the government would not now be as worried at this stage.

The Covid Inquiry – rightly, on any sensible view – instead wants to make the key relevancy decisions.

With an inquiry with a smaller scope, the government may have grounds for pushing back on such ambitious claims.

But this is an inquiry into the biggest public health issue of recent times, and so the benefit of the doubt should be with the inquiry.

The chair of the Covid Inquiry is also a former senior judge (presumably with security clearance) who is well placed to make decisions on relevance.

And it is certainly the case that what is provided to the inquiry will not be published unless it is deemed relevant.

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One can understand why the Cabinet Office officials and lawyers want to keep tight control on what is disclosed to the inquiry.

The government may even litigate to keep this control.

Yet any sensible person will want the government to lose such a case (though it is the nature of litigation that there is no absolute certainty that the government would lose).

For if we want this public inquiry to make the most robust possible findings, and the best possible recommendations, then it needs access to all available information.

And so the Covid Inquiry should not be hindered by the government deciding for itself what is and what is not relevant.

For whatever goes into this inquiry, the “out” should not be garbage.

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Disclosure: I am a former central government lawyer.

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Tick tock, tick tock Cabinet Office – the Covid Inquiry stand-off this weekend

26th May 2023

My post on former Prime Minister Boris Johnson and the Cabinet Office lawyers should be ready to be posted on Monday, so in the meantime this post is about the stand-off this weekend between the Cabinet Office and the Covid Inquiry.

To recap: the Covid Inquiry has immense legal powers, and it has exercised one of those powers in serving a formal section 21 notice on the Cabinet Office.

This means that unless it has a legal reason not to do so, the Cabinet Office now has to comply with that request on pain of criminal sanction.

For inquiries under the Inquiries Act are powerful legal creatures, and their formal requests are not to be taken lightly.

See my previous post on this here.

The section 21 notice was dated 28 April 2023.

And you will see in the appendices the requests for information in respect of Johnson.

The deadline for the Cabinet Office to comply with the notice has now been set by the Inquiry chair to be 4pm on 30th May 2023 – that is this coming Tuesday

Remember Monday is a bank holiday.

And today is Friday.

The initial response of the Cabinet Office was to instruct the government’s senior external lawyer – at presumably great public expense – to make a legal(istic) objection to the notice.

The Inquiry chair deftly put that Cabinet Office legal application back in its box by a ruling this week.

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There now seems to be four possible outcomes of what is now a stand-off.

1. The Inquiry may extend the deadline again, but there is no evidence this has happened.

2. The Cabinet Office may comply with the request and provide the all information requested by Tuesday.

3. The Cabinet Office may not comply with the request, and it will provide either none of the information requested or not all the information requested – in effect daring the Inquiry chair to commence criminal proceedings which will then presumably be defended or otherwise challenged.

4. The Cabinet Office may make an urgent application to the High Court to either injunct the inquiry or quash the notice (or some other remedy) before the deadline of Tuesday.

If the choice is (4) then there really is not a lot of time.

I understand the Cabinet Office is considering its next step on the question of disclosure of what it unilaterally deems “unambiguously irrelevant” material.

We can bet it is.

But the stakes are now high – and there is not a lot of time to leisurely consider the position.

Unless there is an extension, the Cabinet Office has to decide before Tuesday whether to comply, to challenge, or to risk criminal sanctions.

Presumably the final decision is now with someone sufficiently senior who will then have to account for their decision.

But if the decision is to bring a legal challenge, there is almost no time left.

And if the Cabinet Office does not bring a legal challenge, then the commissioning of that expensive legal application from the so-called Treasury Devil looks a waste of public money.

If that application was sincere then the government’s position is that the Covid Inquiry chair is acting outside of her legal powers.

But if the Cabinet Office do not now go through with a legal challenge then it looks as if that application was made for tactical reasons, simply because the government does not want to disclose the documents.

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Which side will blink?

And if the government does not disclose the information requested, will the Covid Inquiry chair commence criminal proceedings against the government?

The impression given by her ruling this week is that she means business.

But how the Covid Inquiry chair responds to anything less than full disclosure by the Cabinet Office on Tuesday will indicate whether that business-like impression is correct.

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Two set-backs for animal welfare law – and a consolation

25th May 2023

While I prepare a detailed post on Boris Johnson and the Cabinet Office lawyers thingie, this is just a quick post to note a couple of setbacks to another interest of this blog: animal welfare law.

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First, you may recall this blog covering the “Frankenchicken” claim, which I thought was a well-made application for judicial review.

Unfortunately the High Court did not, though the judgment is rather difficult to follow – and I may unpack the judgment at a later date.

But plaudits must go to the Humane League (and, yes, we all know the puns for the 80s pop band) for putting together such an impressively crafted case.

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Second, late today on a quiet parliamentary sitting, the government announced it was reneging on the Animal Welfare (Kept Animals) Bill – even though it was at an advanced parliamentary stage.

There are news reports on this here and here.

You may recall that the Conservative manifesto for 2019 devoted an entire page to animal welfare, making (specific) commitments:

And you may also recall two senior cabinet ministers recently insisting that the House of Lords had to accept that the (generalised) content of the Conservative manifesto as the “will of the people”:

But it would seem the government picks-and-chooses which of its manifesto commitments are serious enough to threaten the House of Lords with, and which the government cannot even be bothered with so that it can progress its own bill.

The reason for this pulling of a bill appears to be that the government does not feel confident that it can resist amendments that would further protect animal welfare beyond the protections promised in the manifesto.

It is a depressing moment for animal welfare law.

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On the bright side, however, there is consolation: the great Chris Packham – who does sterling work not only on animal welfare but also neurodiversity – won his libel case, and the judgment is well worth reading.

(The pic above shows him supporting the “Frankenchicken” claim which was coincidently heard at the High Court at same time as his libel claim.)

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“Not a promising start” – a close read of the Covid Inquiry ruling against the Cabinet Office, and why it may be very significant

24th May 2023

(This is the first in a planned series of posts on the Covid Inquiry – the next will be on Boris Johnson’s lawyer difficulty.)

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Today the Covid Inquiry made what may be a significant ruling that could shape how it will go about obtaining information and documents from unwilling to provide those documents.

This post explains today’s ruling – and sets out what the ruling may signal about the inquiry as a whole.

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To begin: public inquiries are powerful legal creatures.

Very powerful.

That is why governments tend to avoid having inquiries under the Inquiries Act 2005 if it can possibly be avoided.

For example, the Daniel Morgan panel inquiry was not under the 2005 Act.

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One of the immense powers of a public inquiry is in obtaining evidence.

The key provision here is section 21, which should be read in full by those following the Covid inquiry generally.

Section 21 provides:

We also need to look at Rule 9 of the Inquiry Rules 2006 for how an Inquiry can obtain information without resorting to a section 21 notice:

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Real legal power, however, lies not so much in having a right to request something, but in what happens if that request is denied.

Here we go to section 35 of the Act:

Whack.

Not complying with a section 21 request is a criminal offence.

There are narrow exceptions to compliance with a section 21 request – for example if a document is privileged.

But subject to narrow exceptions, there is an obligation to comply with a section 21 request to provide evidence.

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In respect of documents, the Act provides that a person is required to provide documents “that relate to a matter in question at the inquiry”.

The crucial word here is “relate”.

It is a broad word, and it means that the scope is far wider than say a requirement to provide documents that are, say, directly relevant.

Documents that can “relate” to something can merely be documents that, although not directly relevant, contextualise other documents.

For example, a document may show what a decision-maker may have been preoccupied with at the same time a more relevant document was created, and so on.

And the provision prompts an obvious question: who decides whether a document “relates” to the work of an inquiry?

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The Covid Inquiry has broad terms of reference (and these also should be read in full by anyone following the inquiry).

And it seems earlier this year, the Inquiry was in correspondence with the Cabinet Office.

Significantly, the Inquiry was only relying at this early stage on requests under Rule 9 – and not (yet) the supercharged legal power under section 21.

According to documents released by the Inquiry today, there was substantial correspondence earlier this year between the Inquiry and the Cabinet Office.

But it seems the Inquiry was frustrated with what was (not) being disclosed and what was being redacted.

And so on 28 April 2023 (though not published at the time) the Inquiry chair issued a Section 21 notice:

Such a notice has to be taken seriously – very seriously.

The government, however, contended that it did not need to comply.

And instead made an application under the Act for the notice to be revoked.

The Cabinet Office even went so far to instruct the Treasury Devil – the government’s most senior external legal adviser – to set out the application.

And so we have a ten-page legal(istic) submission which looks far more like a court pleading than anything else.

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The primary objection of the government is what it calls “jurisdictional”.

In essence, the government contends that the Inquiry cannot order disclosure of documents which are “unambiguously irrelevant”.

The published application is very reliant on the phrase “unambiguously irrelevant” – even though that is not expressly mentioned in section 21 of the Act.

It is almost as if the government’s lawyers have devised this test for themselves, and now insist it has to be applied.

Of course, the section 21 power is for documents “that relate to a matter in question at the inquiry” – and here we have to remember that the Covid Inquiry’s remit is very wide.

In simple terms, the government’s position is that if a requested document does not relate to a matter in question at the inquiry then the Inquiry has no power to order disclosure.

And the crucial point is that the Cabinet Office says it is for them to decide whether a document is “unambiguously irrelevant” – and not the Inquiry:

“It is also important to note that the Cabinet Office has explained, in correspondence, the measures it has taken as a result of which the Inquiry can be assured that the appropriately high threshold has been, and will be, accurately and properly applied. The ability of parties to distinguish between potentially relevant material (including adverse material) and unambiguously irrelevant material is seen day in and day out in all litigation contexts. Such judgements are made by qualified legal representatives, owing professional obligations beyond those owed to their client, up to and including Leading Counsel.”

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The Application was considered by the chair of the Inquiry.

And the chair of the Inquiry said No.

Her ruling was published today, and it takes the government’s objections to jurisdiction head on.

The chair observes:

“The Notice was, as I have explained, premised on my assessment that the entire contents of the documents that are required to be produced are of potential relevance to the lines of investigation that I am pursuing.

“The essential thrust of the application therefore appears to be that this assessment is irrational, and thus there was no power to issue the Notice, because the Cabinet Office has reviewed the documents for itself and has concluded that those parts which are sought to be withheld from the Inquiry are “unambiguously irrelevant”. 

“I do not accept that my assessment was irrational.”

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(Please note I have broken up longer paragraphs from the quoted documents for flow.)

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The chair then makes a strong point about breadth and who makes the choice (emphasis added):

“First, it is self-evident that the Terms of Reference of this Inquiry are of great breadth. It is equally obvious that in order to discharge those Terms of Reference I will need to undertake a large number of extremely diverse lines of investigation.

“Those lines of investigation are bound to involve factual matters that are not specified in, and which may be collateral to, not only the issues identified in the Terms of Reference itself, but also the issues particularised in the published provisional scope document for any particular module of the Inquiry, and/or any more detailed lists of issues that the Inquiry may provide to Core Participants.

“For example, in order to evaluate the response of the government and/or of any individual Minister to the pandemic, it may be necessary for reasons of context for me to understand the other (superficially unrelated) political matters with which they were concerned at the time.

“Such matters may acquire greater significance where it appears to me, or it is otherwise suggested, that a Minister dealt with Covid-related issues inadequately because he or she was focusing (perhaps inappropriately) on other issues.

“For similar reasons, I may also be required to investigate the personal commitments of ministers and other decision-makers during the time in question.

“There is, for example, well-established public concern as to the degree of attention given to the emergence of Covid-19 in early 2020 by the then Prime Minister.

Moreover, the need for me to investigate allegations that have been aired publicly regarding disagreements between members of the government and breaches of Covid-19 regulations by those within government provides a further basis upon which material such as diary arrangements and content which may not appear to relate directly to the response to Covid-19 are of at least potential relevance to the investigations that I am conducting.

“The fact that the Cabinet Office has asserted that matters such as “entirely separate policy areas with which the Inquiry is not concerned” and “diary arrangements unconnected to the Covid-19 response” are “unambiguously irrelevant” to the work of my inquiry 4 demonstrates that it has misunderstood the breadth of the investigation that I am undertaking.”

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“Misunderstood.”

Ouch.

The chair continues:

“Second, it does not follow from the fact that the Cabinet Office has itself reviewed material, and considers it “unambiguously irrelevant”, that my assessment that the material is of potential relevance is irrational.

“The application seeks to establish a principle that the Chair of a public inquiry will be acting ultra vires in requiring the production of material where the recipient of a section 21 notice declares that material to be “unambiguously irrelevant”.

“I reject that proposition.

“The key flaw, as it seems to me, is that it wrongly allocates to the holder of documents, rather than to the inquiry chair, the final decision on whether documents are or are not potentially relevant to the inquiry’s investigations.”

Well, quite.

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She adds:

“It cannot be right that a mere assertion by such a person of “unambiguous irrelevance” has the effect of extinguishing any power in the inquiry to require the production of the documents so that it can determine for itself the relevance or otherwise of the material.

“In this case the document holder is a government department, but, in another, it might be, for example, a private individual or entity suspected of criminality.”

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And then the ruling gets very interesting, as she illustrates one particular point (again emphasis added):

“…it is apparent that some important passages (relating for example to discussions between the Prime Minister and his advisers about the enforcement of Covid regulations by the Metropolitan Police during the public demonstrations following the murder of Sarah Everard) were initially assessed by the Cabinet Office to be “unambiguously irrelevant” to my investigations and therefore redacted from copies of the WhatsApp messages initially provided to the Inquiry.

“Whilst those redactions have now (very recently) been removed, it was not a promising start.”

Not a promising start.

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The Application was dismissed, and the government has to disclose the requested documents by next Tuesday 30th May 2023.

The Cabinet Office may make a judicial review application to quash the notice – but unless it takes such a step, the only choice now is compliance or criminality.

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More generally, the chair’s ruling may be highly significant: an early sign that this Inquiry is not to be messed with, and that it will see through legalistic disclosure points of the government.

As such it is a very encouraging development.

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I plan to do a further post in the next day or two focusing on Boris Johnson’s particular problems with this disclosure decision.

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Why we now don’t just have “proper” political scandals

23rd May 2023

Today in parliament, during a debate on an urgent question related to the conduct of the current Home Secretary, a backbencher asked a striking and thought-provoking question:

“What’s wrong with this country? We used to have proper scandals abour sex or money, or about PM’s invading Iraq…”

There is an answer to this question, though perhaps not the one he wants or expects.

The reason is that the informal and often hidden ways these sort of issues used to be dealt with are no longer followed.

The hyper-partisanship and opportunism of ministers – especially in the last five or so years – means there is now a general attitude of getting away with things.

The unseen checks and balances provided by self-restraint – the soft constitutional conventions, as opposed to hard(ish) constitutional law – are old hat.

Cummings and Johnson may well be gone – but their damage to our constitutional arrangements lingers.

And so – there being no other way to deal with, say, the conduct of the current Home Secretary – it has become a parliamentary and public matter.

There is nothing as a buffer before any mess-up becomes part of day-to-day politics.

And unless ministers relearn the checks and balances of self restraint – in a word, “constitutionalism” – then it may be that there will be a lot more time and attention on these not “proper scandals”.

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And if Braverman goes, then what?

22 May 2023

Another week, another senior cabinet minister facing demands to resign.

This time it is the Home Secretary Suella Braverman – and the key question is whether she misused her office and advisers in respect of dealing with what followed from a speeding offence.

And this means the key question is again not anything to do with policy.

Of course: this Home Secretary should not even be in office.

As this blog set out in plodding detail, her two accounts of that last incident did not add up.

In particular, the statement in her (last) resignation letter that “[a]s soon as I realised my mistake, I rapidly reported this on official channels, and informed the Cabinet Secretary” was simply not correct.

But it doesn’t matter; and it never now matters.

The detail of what happened last time is so much ancient history – even though it was only a few months ago.

The question of whether she stays on is one of pure politics – not law, not policy, not administration.

Does the Home Secretary have the political power to stay on?  Or does the Prime Minister have the political power to get rid of her?

One should not underestimate the Prime Minister in these situations: he deftly got rid of Dominic Raab by the expedient of delaying any decision to endorse him.

The Prime Minister did not become a head boy at a big school or a senior banker without knowing how to play certain games.

And so we may now also be seeing again the former Goldman Sachs banker “managing out” a troublesome junior colleague.

Who knows.

But perhaps those (of us) who would want to see Braverman no longer at the Home Office should be careful about what we wish for.

Her replacement might be an actually competent hardline Home Secretary.

Though, of course, it must also be said there are not that many potentially competent hardline ministers left for any department.

Cabinet ministers come and go, but the lack of any substantial policy and reform looks likely as if it will stay a while longer.

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The commercialisation of private prosecutions

19th May 2023

In the Financial Times magazine this weekend – and on their website (though behind a paywall) – is a fascinating and detailed article on the commercialisation of private prosecutions – especially in respect of shoplifting and online counterfeiting.

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By way of background: usually one way of explaining the difference between criminal law and civil law is that in the former a person is prosecuted by the state, while in the latter a person is sued by another person.

But with private prosecutions, a person can bring criminal prosecutions against another person.

It is an example of the private enforcement of public power.

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Of course, the hope (if not expectation) is that any abuse of these prosecutions would be dealt with by an impartial and independent court looking out for the public interest.

But such prosecutions are outside of the processes the police have of dealing with incidents, and also outside of the processes of the Crown Prosecution Service have in determining whether a prosecution should be brought.

Yes, it is possible for the Crown Prosecution Service to step in and terminate a private prosecution, but that is exceptional.

So what we have are defendants – whose cases would have been dealt with differently had the police or the Crown Prosecution Service – facing harsher sanctions at the criminal courts.

And this is done as a business, as the Financial Times spells out, for those bringing these prosecutions only get paid if they can apply for public funds at the end of a successful prosecution.

It seems the various shops and businesses which are affected by the criminality in question do not contribute to the costs of the prosecution.

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The article points to both a justice gap and to a failure to properly fill that gap.

Many of the shops and businesses nod-along with the private prosecutions because they have no confidence in the police and the Crown Prosecution Service, who in turn are not properly resourced.

And as several of those caught up in the private prosecutions have drugs problems, it can even be contended that some of the prosecutions make no real overall difference to the crime levels, just diverting crime elsewhere from the protected shops and businesses.

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The Financial Times piece is an interesting sideways snapshot of the criminal justice system.

And if you cannot afford to buy the Financial Times tomorrow, and so decide to read it inside the newsagents instead, please do remember not to walk out without paying for the newspaper.

The article will tell you why.

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Can anything actually be done to improve parliamentary scrutiny?

18th May 2023

Over at The House Magazine – in effect, parliament’s in-flight magazine – there is a thoughtful and informative article by Dr Alice Lilly entitled The Slow Death of Parliamentary Scrutiny.

One merit of her piece is that is looks at other long-term and structural reasons for the difficulties parliament have in scrutinising draft legislation – that is, other than the obvious one that any government does not want to be scrutinised.

And although ministers and their media supporters often play-act about the undemocratic House of Lords, it is plain that the government is increasingly relying on the upper house to save the government from itself in the legislative process.

Peers are now doing the tidying up of bills that really should be done before legislation is even presented to parliament.

And, in turn, departments, are seeking to shove more through by means of unscrutinised secondary legislation.

In essence: the House of Commons is becoming an ornament – though not a pretty one – rather than an instrument of the state.

But.

Although the problem can be stated, it is less clear what – if anything – could be the solution.

Scrutinising legislation is dull, thankless work – and so, unless it is made a well-resourced priority for active members of the the House of Commons, then the natural tendency will be for politicians to do other things.

And one can take for granted that ministers (of any party) and officials will seek to avoid scrutiny if they can.

Abolishing – or restricting – the House of Lords would cause more problems, unless such a change was part of a broader package of fundamental parliamentary reform.

The current situation is far from ideal – and it may be unsustainable: for there is only so much one can expect from members of the House of Lords.

Yet unless Members of Parliament make scrutiny of legislation a priority – and insist to ministers and departments that enough time is provided for scrutiny, and also insist on there being proper resources in place for that scrutiny – then it may be we have a worsening problem without any likely solution.

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The “center” ground of politics

16th May 2023

Followers of this blog will be used to my typos – and I am grateful for your patience when there are typos.

But sometimes the (mis)placing of a letter may be significant.

Ecce tweet:

“Center.”

Perhaps that (mis)placed letter is all we really need to know about what is behind this recent phenomenon of “national conservatism”.

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A possible implication of the recent “Will of the People” rhetoric of ministers

15th May 2023

Last week there was a newspaper article under the names of two cabinet ministers.The piece was a warning to the House of Lords about the government’s illegal migration bill.

The “will of the people” in the headline is eye-catching.

And what is also eye-catching is that the new Lord Chancellor put his name to this piece.

One would perhaps not expect too much from the current Home Secretary, but it is striking that Alex Chalk is content to have this under his name too.

The “will of the people” in the headline could have been disregarded as an editor’s embellishment if it was not for the last paragraph of the article (emphasis added):

“We urge the House of Lords to look at the Illegal Migration Bill carefully, remember it is designed to meet the will of the British people in a humane and fair way and back the bill.”

So the “will of the people” line is quite deliberate.

The cabinet ministers are being serious.

And if they are serious, this line perhaps has serious implications.

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The United Kingdom is, of course, a representative democracy and a parliamentary system.

As such, the United Kingdom is not a direct democracy.

Even the few referendums that have been held only had any legal consequence to the extent that a parliament provided for that consequence.

In this system, the notion of a mandate has weak purchase.

An incoming government can ignore a manifesto commitment after a general election.

A government can even flatly reverse a manifesto commitment, as the Conservative government in 1987-92 did with the poll tax (“community charge”).

The only significant effect that a manifesto commitment has for a government after a general election is that, in the event a Bill has opposition in the House of Lords, ministers can say it is an issue on which the democratic element of the polity has conferred a mandate.

And then, by convention – but not by any hard constitutional law – the House of Lords will pass the legislation, rather than delay it or defeat it.

Now, let us look at the Conservative manifesto for 2019:Oh.

(That is the manifesto’s only express mention of asylum seekers.)

There is also this:

The key passage here is “Only by establishing immigration controls and ending freedom of movement will we be able to attract the high-skilled workers we need to contribute to our economy, our communities and our public services.  There will be fewer lower-skilled migrants and overall numbers will come down”.

The introduction to the manifesto also promised that there would be“an Australian-style points based immigration system”.

And there is a promise to “overhaul the current immigration system, and make it more fair and compassionate”. 

No particular legislation is proposed, and – in respect of “illegal” migration, there is no specific measure promised or even a policy stated.

There are just very general objectives.

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And now let us look at the bill before parliament.

This bill does not introduce “an Australian-style points based immigration system”, the only (relatively) specific policy mentioned in the manifesto in respect of controlling borders.

There seems nothing in the Bill which was spelled out in the manifesto.

Contrast this with, say, the 1987 commitment to introduce the poll tax:

“We will reform local government finance to strengthen local democracy and accountability.

“Local electors must be able to decide the level of service they want and how much they are prepared to pay for it.

“We will legislate in the first Session of the new Parliament to abolish the unfair domestic rating system and replace rates with a fairer Community Charge.

“This will be a fixed rate charge for local services paid by those over the age of 18, except the mentally ill and elderly people living in homes and hospitals. The less-well-off and students will not have to pay the full charge but everyone will be aware of the costs as well as the benefits of local services. This should encourage people to take a greater interest in the policies of their local council and in getting value for money.”

Legislation was then promised and the content of that legislation described – both in what will be repealed and what would replace it.

There is nothing in the 2019 Conservative Manifesto which has similar detail about the current illegal migration bill.

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What this means is that ministers are contending that broad-brush statements in a manifesto confer a mandate, rather than any detailed proposals.

As long as ministers can say a general objective is stated in a manifesto, they can seek to browbeat the House of Lords.

The two ministers in their article say:

“It is entirely right that the Lords should scrutinise this important piece of legislation — that is the purpose of parliament’s second chamber. At the same time, it must be balanced against the clear desire of the British people to control immigration. This was a government manifesto commitment in 2019, with a pledge to take back control of our borders.”

Note the weasel word “clear”.

“That is why we have taken robust measures, with the assistance of some of the country’s finest legal minds, to ensure our bill can meet the expectations of the British people.”

Note the implicit admission that these measures were not before the electorate at the 2019 general election, but have been developed afterwards – by “some of the country’s finest legal minds”.

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Is the Conservative manifesto of 2019 sufficiently precise for this bill to have a mandate?

No, of course not.

Statements of general objectives in a manifesto do not – cannot – confer mandates on particular measures.

It is not, and should not be, open for a minister to declare that a measure should not be delayed or defeated in the House of Lords because of general statements of intent in a manifesto.

Many measures could be said to meet that intent – measures different to the ones before the House of Lords.

Had the governing party specified the actual measures in the manifesto, then ministers would have a point.

But the governing party did not, and so ministers do not.

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The implication of this “will of the people” rhetorical device is that the government does not wants  be subject to the rules and conventions of representative democracy and of a parliamentary system.

The implication is that a minister’s interpretation of broad statements in a manifesto cannot be gainsaid.

What the minister wills is the will of the people.

Members of parliament and peers would then be left with no role other than to approve what a minister says is the will of the people, just because of general statements in a manifesto.

That would create a significant constitutional imbalance.

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And on a more mundane level, if this approach catches on then it may mean that even those (like me) who are sceptical of proportional representation and electoral reform will have to change their (our) minds.

For the one-member-per-constituency model only makes sense (if it makes any sense at all) if MPs are not delegates but representatives.

And the so-called “Salisbury doctrine” – that provides that the House of Lords does not block manifesto commitments – only makes sense in respect of things that have a degree of specificity in a manifesto.

What Braverman and Chalk are seeking to do here may be attractive to them (or their article writers) in the short-term, but for each constitutional push there is (or should be) an equal and opposite counter-push.

And so seeking to bully the House of Lords with rhetoric about “the will of the people” for measures which were not actually set out in a manifesto could be counterproductive.

If ministers are acting like there is a direct democracy, then the current system is not sustainable.

And if there is electoral reform and proportional representation, then it is likely that such stridency in policy will be far more difficult.

The ministers may tell peers that the measures are good and practical (even if they are not), and thereby promote the bill on its merits.

But if they keep playing with this “the will of the people” rhetoric, Conservative politicians may discover that, if there is electoral reform and proportional representation, the actual will of the people will be a very different beast.

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