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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Why [x] should be regulated.

17th May 2023

Concerns about the implications of [x] have led to calls for it to be regulated.

In a “nightmare scenario” one leading politician has said that “[x] could get out of control” with “unimaginable consequences”.

The politician added that they had read reports about [x] and that “something really should be done”.

“Why is the government not doing something about [x]?  Doesn’t the government care?”

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“Doesn’t the government care?”

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An official spokesman rejected the allegation that the government does not care about [x] and commented that “all options remain open, including regulation and even prohibition”.

Surveys show that members of the public when asked if “x should be regulated?” generally say that it should be regulated, unless those members of the public are asked if “[x] should be banned?”, and then they say it should be banned instead.

“Whatever [x] is,” said one person in a vox pop, “it shouldn’t be allowed.  And what about the children?”

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“What about the children?”

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Independent observers said that [x] is not capable of being defined, let alone regulated or prohibited, and dismissed concerns as “being responses to loaded questions” but they also admitted fearing that their observations would be relegated to a long paragraph towards the end of this article which few would actually read.

Supporters of [x] yesterday refused to be interviewed for this article, commenting instead by email that whatever they said would be relegated to the end of this article, coming after and before what they said would be “scaremongering”.

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“Scaremongering”

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The final word must go to the politician who called for regulation of [x] who also said “[x] should now be allowed,” when asked with a differently framed question, adding “there is too much red tape”.

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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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Ecce Homo, Ecce Rex

12th May 2023

There was one part of the coronation ceremony last week – other than the poor minister carrying that sword for such a long time – which I found striking.

It was when, as part of the religious element of the the service, the king was stripped to his shirt.

And the reason this struck me was not its religious significance, but because it reminded me of a nineteenth century sketch that this blog has featured before.

This engraving by William Makepeace Thackeray:

The point of the caricature, of course, is that there is a distinction with any ruler between the natural person and their paraphernalia of office.

The comic series Sandman also deals with this point, where the entity Dream realises that he has wrongly infused (or perhaps confused) his three symbols of power (helm, powder, ruby) with own immense power.

This is not a new thought: as long as we have, as a species, have had notions of (what we would now call) lordship (rather than face-to-face dominance) then there has been the issue of the extent to which artefacts confer power – or whether the artefacts instead recognise and convey power.

Of course, the more confident the ruler, the less they need to resort to any visual rhetoric and symbolism.

Genuinely powerful rulers need few props, for they have power instead.

And a confident ruler in a culture where there are props of office will be unafraid to not be seen with those props.

The paraphernalia is an extra, not the essence.

And this is true whether the garb is a crown, or a judge’s wig and gown, or a police officer’s helmet and warrant card.

This is why this step of the coronation was so interesting (and it is, it seems, an ancient component of the service and not some novelty).

Not only did we see a king with his crown and his orb and his sceptre: we got to see him before he put any of them on.

We got to behold the man, before we got to behold the king.

And the point that Thackeray was slyly making with his cartoon is that some with power would very much not want you to behold any such thing.

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Note: the title may be better as Ecce Homo, Ecce Regum – and so I apologise for my prioritisation here of style over substance:

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Why the dropping of the REUL sunset clause may be very bad news for Rejoiners

11th May 2023

There is a glorious, telling passage in the new book from Anthony Seldon about Boris Johnson.

It is the day of the Brexit referendum result:

“Boris Johnson had expected Remain to win: ‘Holy s**t, f**k, what have we done?’ he uttered under his breath on hearing the result. […]

“‘Oh s**t, we’ve got no plan. We haven’t thought about it. I didn’t think it would happen. Holy crap, what will we do?”

What will we do, indeed.

As a Canadian diplomat remarked at the time: the Brexiters were the dog that had caught up with the car.

And that has pretty much been the general position since: what do we actually do with the possibility of divergence from EU law and policy?

Because there have been few answers to that question, there have been a succession of simplistic, gesture-ridden proposals.

For example, the Johnson government promoted a Bill that would mean that all retained EU law would be repealed automatically on a given date: a so-called “sunset clause”.

As Brexiter ministers could not think of anything specific to repeal, they decided to repeal everything, all at once.

This was silly.

The unintended consequences of sudden removals of forty-five years worth of technical legislation would have been horrific.

And this sudden removal ignored the fact that much of that legislation had been crafted and shaped by United Kingdom ministers and officials in our interests and to meet our needs.

The proposed legislation was a reckless exercise in superficial politics.

The government, now recovering some of its wits under the new Prime Minister Rishi Sunak, has now announced that the sunset clause will be ditched.

This is a sensible and welcome move.

Some who want the United Kingdom to rejoin the European Union may want to gloat at the government’s reversal.

But.

Rejoiners should perhaps be worried instead.

For this shift – like the Windsor framework – is a signal that Brexit silly season may be coming to an end.

And that long-term, fundamental divergence is about to begin.

The government is now getting real – and realistic – about Brexit.

The clowning legislation of Jacob Rees-Mogg is being dumped.

Of course: some Brexiters are upset at this symbolic sunset being itself sunsetted.

For them the politics of Brexit is just about symbols and gestures.

And so they too are quite unaware that the real Brexit is now beginning.

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Today’s Metropolitan Police apology shows they are still failing over Daniel Morgan

10th May 2023

The Metropolitan Police fail and fail again in respect of the murder of Daniel Morgan.

Some of these failures were in the five botched police investigations and the often accompanying corruption.

But some of these failings are in how the Met has dealt with the disclosure of materials to the Daniel Morgan inquiry, which reported in 2021.

In the report, the panel said (emphasis added):

“There was not insignificant obstruction to the Panel’s work. At times the contact between the Panel and the Metropolitan Police resembled police contact with litigants rather than with a body established by the Home Secretary to enquire into the case, and to which the Metropolitan Police had promised to make ‘exceptional and full disclosure’.

“The Panel concludes that, despite the express commitment by the Metropolitan Police in the Terms of Reference to support the Panel’s work, the Metropolitan Police did not approach the Panel’s scrutiny with candour, in an open, honest and transparent way, making exceptional and full disclosure of relevant documents. The way in which material was disclosed or withheld had the effect of making the Panel’s work more difficult.”

And so, to the surprise of absolutely nobody, the Met has now admitted to substantial material non-disclosure:

If you are gullible enough to accept the Met’s explanation for this delayed disclosure at face value, do note that there has been no reason given for why materials found in January are now only being acknowledged in May.

(Also note the deft and vague “number of years” – the appointment of the panel was announced in 2013.)

There can be no good reason for the non-disclosure of these materials and for the delay in admitting they exist.

This is simply a continuation of the evasive and obstructive non-disclosure practices of the Met throughout this whole matter.

The Met did not like – and do not like – the concentrated scrutiny that comes with an inquiry such as that conducted by the Daniel Morgan panel.

The Met would much prefer to deal with the short attention spans of time-poor and story-hungry media.

The problems identified by the Daniel Morgan panel, which I set out in this video, are still present in the Met.

Our thoughts should be with Alastair Morgan and the Morgan family at this latest let-down.

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Big “P” Party vs little “p” party

9th May 2023

I once listened to a Young Conservative’s spirited explanation to two passers-by about how the Conservative Party did not actually exist.

There was, you see, the National Union of Conservative and Unionist Associations; and then, you see, there is the parliamentary party, which is quite separate; and then, you know, there is Conservative Central Office.

As the Young Conservative then went onto explain how professional party agents did not fit into this neat scheme, I could tell those being canvassed-in-the-street were both impressed and bewildered.

Surely a “Party” is a thing?

Well, actually, the Young Conservative was more-or-less correct.

And “parties” are still quite difficult to define.

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Of course, there are legalistic definitions.

In the Political Parties, Elections and Referendums Act 2000, “party” is to be interpreted as including “any organisation or person” and “registered party” is defined as a party registered under that Act.

This is not illuminating.

Once registered, parties have certain obligations and rights, but that will not help us understand what is meant by “party”.

Halsbury’s Laws of England tells us the effect of that Act:

“In order to field candidates at elections, political parties must be registered.

“A party may not be registered unless it has adopted a scheme which sets out the arrangements for regulating the financial affairs of the party and which has been approved in writing by the Electoral Commission. The scheme must include such information as may be prescribed by regulations made by the Commission and must determine in particular whether the party is to be taken to consist of a single operation with no division of responsibility for the financial affairs and transactions of the party, or a central organisation and one or more separate accounting units. Where a registered party is a party with accounting units, each unit has a treasurer and an officer.”

Again, informative but not illuminating.

Elsewhere in the law, there are hints

For example, one of the (many) contributions by James Goldsmith to the law of defamation was to bring a case which resulted in it being established that a political party cannot sue for libel.

In this way political parties are like public authorities.

But again, this does not tell us what a “party” is.

Outside of law, we can point to the defintion of the eighteenth century Irish philosopher and British politician Edmund Burke:

“a body of men united, for promoting by their joint endeavours the national interest, upon some particular principle in which they are all agreed.”

One may quibble with at least a couple of words in this defintion – but it is helpful because it does not constrain us to just looking at professional politicians, professional staff, and/or volunteers.

It is a body of [people].

And once one adopts this broad and practical defintion, one can begin to see what are perhaps the real parties.

For example, the fluid movements between think tanks and media organisations and news desks and op-ed gigs and special advisors and hired consultants – and elected politicians and peers – show bodies of people united by their joint endeavours to promote what they see as the national interest upon various agreed principles and policies.

A Martian looking down at Westminster, Whitehall and (what used to be called) Fleet Street would assume, by observation alone, that the sum of the interactions and communications between various bodies of people were the real political parties – regardless of formal nomenclature.

And this is not necessarily a thing about the political right – for there is also, often on the political left and in the political centre – fluidity between pressure groups and campaign groups and trade unions and public bodies and campaigning organisations and civil servants.

These small-p Burkean parties can overlap and sometimes correspond to the big-P Parties.

The big-P Parties indeed seem to be coalitions of these teeming small-P Parties, sometimes spilling outside.

And as big-P Parties decline – for changes in media and communications mean the information-dissemination and organisational purposes of the big-P Parties are falling away – these small-p parties will become again more important, as they were in the days of Burke.

It will not be a complete reversion – big-P Parties will still be significant because of enduring brand loyalty (and recognition) and lingering tribal allegiances.

And these small-p parties – although highly influential – are impossible to regulate with ease.

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We will have to get used to the boundaries between media and politics and business becoming more blurred – individuals casually going from news rooms to parliament to commerce, and so on, working in tandem with others similarly moving around.

And if enough of us object to this trend in our political culture?

Well: we can form our own a body of people united, for promoting by our joint endeavours the national interest, upon this particular principle on which we are all agreed.

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