A strange day in politics – and what needs to change

19th January 2022

Well, that was a strange day.

The Prime Minister was in defiant mood – as voters and his own backbenchers deserted him.

The Prime Minister was facing a leadership challenge –  but not one quite yet.

And the Prime Minster was unable to tell the House of Commons that, as a matter of general principle, a minister who lies to the House should resign.

So a strange day – but also an in-between day.

The sort of day that will be soon forgotten in-and-of-itself, especially compared with some dramatic event that will no doubt soon come.

But.

The real problem, as this blog has previously averred, is not really the person of Boris Johnson.

The Boris Johnsons of this world are, like the poor, always with us.

The Donald Trumps are also always with us.

They are what they are, and they do what they do – the only difference is now that they are able to have political power.

And this is because of two things.

The first is the failure of various small-c conservative gatekeepers – politicians and media figures and others – who should and did know better.

The sort who clap and cheer at such authoritarian populism, when the populists should instead be checked and kept away from positions of power.

And the second was (and is) the complacency of the liberals and progressives.

Those who think that being dismissive of authoritarian populists is enough to somehow defeat them.

It is not – and that is how in just a few years we went from Obama and Blair/Brown and the sentiments of the 2012 Olympics and ‘Yes We Can’ to the world of Brexit and MAGA.

Tutting is not enough – authoritarian populists need to be taken on and defeated.

And small-c conservative need to not be enablers.

Whilst there is this fundamental system failure where conservative gatekeepers and liberal-progressives fail to check authoritarian populism then, even if we get rid of Johnson, there will be another Johnson.

The problem is upstream.

And that is the cultural change that is needed – and the culture war that needs to be won.

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The preposterous excuse of the Prime Minister – and why it matters

18th January 2022

It somehow keeps on getting worse.

Watch the Prime Minister’s interview today with Beth Rigby of Sky News in full:

In essence, the Prime Minister said he did not know what was happening in front of his very eyes was breaking the rules – because nobody told him.

He was head of the government that made the rules.

He gave press conferences and told the House of Commons about the rules.

If anyone had to know the rules – which were then unprecedented in peacetime – it would have been the head of the government formulating, implementing and enforcing them.

But he says he did not know that rules were being broken – for twenty-five minutes and in front of his face.

And this matters – and not just because of the current political drama.

At the same time as the Prime Minister’s drinks party, individuals up and down the country faced criminal liability for breaking coronavirus regulations.

We did not have the leisurely weeks of a Sue Gray investigation so as to ascertain if they broke the rules.

We had to make instant decisions.

And if we did not make the right decisions, the police had in turn to make their own instant decisions.

Everyone was expected to understand and follow the rules.

The situation is – utterly, literally – ridiculous.

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The joy of implicitly

17th January 2022

“Implicitly” is a mischievous word, a Puck of a word.

And those who say and hear such words must be careful, else this Puck of a word can cause unexpected confusion.

It is the word of the moment in British politics.

Last week, the Prime Minister told the House of Commons:

“When I went into that garden just after 6 o’clock on 20 May 2020, to thank groups of staff before going back into my office 25 minutes later to continue working, I believed implicitly that this was a work event, but with hindsight, I should have sent everyone back inside.

Now what was the naughty “implicitly” doing in that sentence?

The word must be there for some purpose, as this was something carefully worded that the Prime Minister read out.

Read that sentence again without the word:

“When I went into that garden just after 6 o’clock on 20 May 2020, to thank groups of staff before going back into my office 25 minutes later to continue working, I believed that this was a work event, but with hindsight, I should have sent everyone back inside.

This sentence is intelligible – and had he believed it was a work event, that is all that needed to be said.

But someone added the word “implicitly”.

Why?

It is not an especially legalistic word – so, although the sentence was plainly lawyered, it is not there for a specific legal purpose – or at least not one I can identify.

But presumably it is there to change meaning from the plain “I believed” into something else, something more vague and perhaps evasive.

A Westminster/Whitehall insider told me that the use of “implicitly believed” was very much the “don’t ask, don’t tell” of workplace gatherings.

A sort of plausible ambiguity – to let you get away with things that you would know, had you considered it, would not be the case.

In this way it would be a coded synonym for ‘conveniently’.

And the word seems to matter: for it has been repeated by Number 10 and other ministers – and so it is the line to take.

So: the word makes a difference to meaning – and it is a word that matters so much that its use is being forced upon press officers and ministers.

Maybe it means that the Prime Minister cannot show any explicit evidence that he had that view (or expressed that view), and so assumed it.

Here is Adam Wagner, the leading authority on the coronavirus regulations.

Or maybe Johnson is seeking to deftly avoid any legal liability?

Who knows.

But what is certain is that it matters to Johnson – and that he believes in this phraseology, well, implicitly.

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What the apology to the Queen shows about the theory and practice of the Crown and the Constitution

16th January 2022

The Prime Minister Boris Johnson last week apologised to the Queen for the Downing Street partying on the eve of funeral of the Prince Philip.

This partying was, of course, in contrast to the Queen having to mourn alone

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Last week the Queen was not told that she had to wait for the result of the Sue Gray investigation.

Oh no – the Prime Minister did not think that even he could get away with that deflection to that audience.

Although it less clear what the Prime Minister is actually apologising for.

The apology of the Prime Minister to the Queen has great significance.

Not least as it shows the actual sentiments of a government that promotes performative patriotism with numerous flags behind ministers and wants the national anthem played on the television each day.

But then again, this was the government who provided unlawful advice to the Queen on prorogation – and it seems that, like lockdown regulations, genuine regard for the Queen is for other people.

It also indicates the high public esteem with which the Queen is held and that the government knows that it will not get away without any admission of fault.

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It reminded me of the early history of the telephone hacking scandal.

This was when there was a general cosy complicity between some of the media and the Metropolitan Police.

Then it appeared that telephones in the Royal Household were being hacked – and something had to be done.

And because this involved a different part of Scotland Yard to that which had the close contacts with the press, a prosecution was brought and two convictions were obtained.

This showed that – regardless of constitutional theory – the Crown had a special place within our constitutional arrangements.

There was a limit to what others with political and media power can get away with when the Crown is involved.

The Crown matters.

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In constitutional theory, the Crown has a complex and pervasive quality.

It has many modes.

It is an organising principle of a great deal of our constitution: the royal prerogative, acts of parliament (ie bills with royal assent), the high court, and much else, all derive their existence and legitimacy from the Crown.

But it is also the position of the monarch, who has special rights and privileges in respect of the executive, parliament and the courts.

And it is about Elizabeth herself, whose first Prime Minister was Winston Churchill and now is coming up to her platinum jubilee.

The extent of the power and the influence of the Crown varies with which mode is at play.

But, regardless of theory, there is every so often in practical political affairs a new situation where the involvement of the Crown makes a difference.

And last week we happened to see another one.

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A critical, general overview of the Sue Gray investigation

15th January 2022

This post brings together my posts and tweets relating to the Sue Gray investigation in to the Downing Street parties during lockdown, as well as some new thoughts, into a single general overview.

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There are a couple of preliminary points worth making.

First, investigations like this – and other such forms of ad hoc inquiry – can be signs of an unhealthy polity.

(I argued this in the Financial Times back in 2014 and on this blog last year.)

This is because many inquiries, and most demands for inquiries, are also implicit admissions of State failure.

The admission of failure is that the other permanent elements of the State – primarily the executive, the police, the permanent regulators, the ombudsman system, the legislature, and the judiciary – have all failed in their roles.

If these elements of the State had done their job properly at the time – or been allowed to do their job properly at the time – then there would be less need for ad hoc inquiries after the event.

Every demand that there ‘should be an inquiry’ is also an implicit acceptance that the elements of State with the legitimacy and the purpose to supervise and scrutinise have been deficient.

And as this blog has also averred, often those put at the head of such investigations and inquiries are not sufficiently experienced or well-suited to obtain evidence which those facing scrutiny are unwilling to provide.

(In particular, judges and barristers spend most of their careers looking at documentary evidence which has been helpfully ascertained and compiled by others, rather than ever digging out the raw evidence for themselves.)

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The second preliminary point is that ad hoc inquiries usually suit politicians and others with public power – especially if those inquiries do not have powers to compel evidence which would otherwise not need to be given.

Here it helps to think of the techie phrase Garbage In, Garbage Out (GIGO).

Most inquiries and investigations are only as good as the evidence – documents and testimony and so on – available to them.

If you control the flow of evidence in to the process, you often have significant influence of the ‘findings’ and ‘conclusions’ that come out of the other end.

Garbage In, Garbage Out.

The eye-opener for me on this was when I was a central government lawyer about fifteen-or-so years ago.

I met other central government lawyers who explained how on inquiry work they would work backwards from what they wanted to achieve to the terms of reference of the inquiry so as to ensure they put in the evidence that would tend to the desired outcome.

And the government and others with public power (for example the police) have access to many good specialised lawyers who know how to game the inquiry system like this.

This is not necessarily wrong – it is the job of a lawyer to understand the rules of procedure and of evidence in respect of any process on which they advise.

But it is certainly contrary to the naive view that an inquiry will somehow magically find all the information that will enable it to come to some desired scathing conclusion.

And when the inquiry does not reach a scathing conclusion, the reaction is often that those doing the inquiry have deliberately sought to do a ‘white wash’.

Whilst in reality, the apparent ‘white wash’ is because of what happens with the supply of evidence in the first place.

If you control input the evidence, you will tend to control the output.

Garbage In, Garbage Out.

And that is why any worthwhile inquiry or investigation always needs to be independent of those facing scrutiny and why there needs to be powers to obtain information that those facing scrutiny will not want to provide.

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Now we come to the Sue Gray investigation, the terms of reference of which are published here (I am assuming they have not been amended) – and these terms of reference should be read by everyone following this investigation.

You will see that the investigation was to be conducted by the Cabinet Secretary.

It is not unusual for the Cabinet Secretary (who is the head of the domestic civil service and reports directly to the Prime Minister) to be asked by a Prime Minister to conduct investigations into central government matters.

Within the domestic civil service the Cabinet Secretary has unique authority, although – ultimately – he or she will not be independent of the Prime Minister.

But the Cabinet Secretary is not now conducting this investigation.

This is because the Cabinet Secretary attended a gathering which is part of the investigation.

And so an investigation which sort-of-makes-sense when conducted by the head of the domestic civil service who reports directly to the Prime Minister has been passed to another civil servant who does not (at least not as part of their day job).

Sue Gray has a reputation for being independently minded.

(And note: you should be careful of hoping that this reputation means she will be necessarily critical of ministers – for a genuinely independently minded person will also be independent from the loud clamour of ministerial critics.)

But that a civil servant has a personal reputation for being independently minded does not and cannot make them structurally independent.

She is a senior civil servant – but she is not the most senior, not even within her own department of the Cabinet Office.

And so we have a problem – a type of investigation that was envisaged for the very head of the civil service now being done by a more junior colleague.

And she is investigating her own colleagues some of whom may be at the same level as her and some – like Simon Case – more senior.

The investigation is also into special advisers and others who will be close associates of her ministerial bosses.

There has long been a problem with the non-transparent and closed nature of Cabinet Secretary investigations  – but at least they sort-of-made-sense, but this arrangement must be even more unsatisfactory.

But, as this blog recently contended, the politically charged nature now accorded to this investigation would make inappropriate for any particular civil servant, let alone one who is not the Cabinet Secretary.

It is an investigation that ministers are hiding behind to avoid ministerial accountability to the House of Commons, and her report may topple (or ‘clear’) a sitting Prime Minister.

For all her merits, Sue Gray is not – and should not – be a crucial element of the constitution.

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Now we come to the structural problems of the investigation.

And here, even before we come to this investigation’s Terms of Reference, there are a number of issues:-

Gray cannot make a determination as to whether there is criminal liability, as she is not a court.

Gray cannot make an independent assessment of the application of non-legal guidance to her colleagues as she is not independent – and some of those being investigated are more senior in the civil service than she is.

Gray cannot compel testimony and documents – or even full disclosure – from any of those involved.

And Gray cannot determine whether the prime minister or another minister is in breach of the ministerial code, as she is not the prime minister.

None of these are her fault, and none of these are criticisms of any decisions she has made or not made.

These structural issues instead arise simply from the nature of the investigation she has been charged with.

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And now we come to the Terms of Reference.

If you read these carefully then you will see that there is even less scope for there to be any severe criticism published.

Any finding of apparent misconduct by any particular, named civil servant should not feature – for that will be a Human Resources issue (and that is only right, as there needs to be due process).

Here the reference to “the investigations will establish whether individual disciplinary action is warranted” has to be read with “any specific HR action against individuals will remain confidential”  – and so there may be nothing published of particularised substance on any actual breaches, as they will be part of subsequent internal proceedings.

There is mention of making “reference to adherence to the guidance in place at the time” – but this may not mean a great deal.

The word “reference” here can mean little more than the guidance will be read and perhaps mentioned.

There is no express requirement under the Terms of Reference for Gray to apply the guidance to the facts so as to ascertain whether there has been any breaches.

Gray may do so – and if she is independently minded, she may indeed do so – but there is no requirement for her to do so.

All she is required to do so is to “establish swiftly a general understanding of the nature of the gatherings, including attendance, the setting and the purpose”.

Note the “general”.

She can also refer this matter to the police  – but the threshold for what would trigger such a referral is vague.

And without being able to compel evidence, there may not be information provided to her for her to consider making any such referral.

(It is a remarkable feature of all this is how the Metropolitan Police – who can compel evidence – have fettered their own discretion and contracted out this investigation of a civil servant investigating other civil servants – who cannot compel evidence.)

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There are already problems in practice.

Parts of the investigation seem to have been leaked to the press.

And if it is leaking to the press, then presumably it would also be leaking within the civil service.

These apparent leaks are probably not from Gray and her team but from those affected who are being presented with provisional views or updates for their responses (this would be being done for fairness – even though this is not a judicial or even quasi-judicial process – for there is a general rule that those facing criticism in a report should be able to make representations).

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There are also indications that Gray has not been given full information – which is not surprising given the lack of power to compel evidence and the potentially serious consequences for facing scrutiny.

And it may be that the report keeps on delayed while new parties are uncovered.

https://twitter.com/davidallengreen/status/1481776450244165639

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Recent political history – in both the United Kingdom and the United States – has seen many people looking forward to reports that then turn out (at least at first glance) not to have been as critical as many have hoped, from the Hutton report to the Mueller report.

But what is not surprising is that so many of these reports fail to be robustly critical – what is surprising is that any of these reports ever are robustly critical.

And this is not (always) because of the personal failures of those running the inquiries – but because of the structural problems of the inquiries and the ability of those (especially with competent legal advice) to regulate the flow of information.

Garbage In, Garbage Out.

Perhaps the independently minded Sue Gray will be an exception to this general view.

Perhaps notwithstanding the limits of the Terms of Reference and her inability to compel evidence, the report will match the elevated political expectations now placed on it.

Perhaps it will provide an ironic justification for the politicians who have hidden behind the investigation so as to evade accountability to Parliament – because it will genuinely be a report so substantial and far-reaching that it actually should not have been prejudged.

Perhaps.

Or it may be a report that will allow politicians to brief friendly media that they have been ‘cleared’ – without many realising the inherent limits on the investigation to find anyone in breach of anything.

(It is almost as if this investigation was structured in such a way so as to give scope to ministers to leak to the press that they have been ‘cleared’.)

Most likely is that the investigation will, well, simply comply with the Terms of Reference that have been public all along and so will provide merely “a general understanding”.

This will be a recital of facts “of the nature of the gatherings, including attendance, the setting and the purpose” – with “reference” (but maybe not more) to the relevant guidance.

But with no findings of breaches of the law, no names named, no individual culpability found.

This is an investigation that is almost

Just the (general) facts.

If so, the strange thing would be that anyone expected otherwise.

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Some thoughts about the Sue Gray investigation

14th January 2022

The Sue Gray investigation – the terms of reference are here – is a curious thing.

It is, ultimately, an internal investigation by one civil servant, who reports to ministers, of other civil servants and various advisors and third parties.

It is not a quasi-judicial process and it has no independent standing.

Yet: it has been accorded substantial political force, and it is being used by ministers and others as an excuse not to be properly accountable to parliament.

Even without looking at the the terms of reference, we can know the following: (a) Gray cannot make a determination as to whether there is criminal liability, as she is not a court; (b) Gray cannot make an independent assessment of the application of non-legal guidance to her colleagues as she is not independent; and (c) she cannot determine whether the prime minister or another minister is in breach of the ministerial code, as she is not the prime minister.

None of this is criticism: it just follows from the nature of the investigation.

When one looks at the terms of reference, there are further problems.

There is mention of making “reference to adherence to the guidance in place at the time” which means not a great deal.

The word “reference” can mean little more than the guidance will be read and perhaps mentioned, but it does not mean there will necessarily be an attempt to apply the guidance to the facts as to ascertain whether there has been any breaches.

The reference to “the investigations will establish whether individual disciplinary action is warranted” has to be read with “any specific HR action against individuals will remain confidential”  – and so there may be nothing published of substance on actual breaches, as they will be part of subsequent due process.

The only things to be published are the ‘findings’ and not the report itself.

An investigation could fulfil these terms of reference and end up not telling us a great deal at all other than reciting facts – and with no findings of any breaches of anything.

And although the facts can be telling, they often require people to tell you what they mean.

Think of the Mueller report.

So we could end up with something that ‘clears’ everyone – not because of any deliberate whitewashing, but because the investigation was not required to do anything else.

Perhaps Gray may apply the guidance to the facts so as to make some findings of breaches of the guidance, but the thing is that she does not need to do so to fulfil the terms of reference.

And this is how a lot of these investigations – and inquiries – are bound not to meet elevated public expectations.

Why they are bound to often disappoint.

Not because of any arbitrary decision by those investigating – or enquiring – to ‘whitewash’ – but because of the very structure of the inquiry and the specific terms of reference.

It is almost as if this investigation was structured in such a way so as to give scope to ministers to leak to the press that they have been ‘cleared’.

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Sue Gray should not be a crucial element of the constitution – and nor should any individual civil servant

12th January 2021

There are two conventional ways of looking at the constitution of the United Kingdom.

One is as a list of institutions: the crown, parliament, the courts, and so on.

Another is as a list of functions: the executive, the legislature, the judiciary (which corresponds generally, but not exactly) with list of institutions.

The general approach of this blog (and my commentary elsewhere) is slightly different: to see the constitution as the means by which certain basic conflicts about power are recognised and reconciled.

But whichever approach you have to understanding the constitution of the United Kingdom, one thing will always be the same.

An individual civil servant should not be a crucial element of the constitution – regardless of who that civil servant is.

A civil servant is (usually) a servant of the crown (taking the institutional approach), a part of the executive under ministerial direction (the functional approach), or has no special competence or legitimacy in resolving a contested political problem (the conflicts-based approach).

Sue Gray, the civil servant tasked with resolving the Downing Street party problem is, by informed accounts, an outstanding civil servant.

And if this was a mere exercise in fact-finding, this task may not be a problem.

But her investigation has become something more.

Sue Gray’s investigation has become a vehicle by which ministers – even at the despatch box – are evading their duty to answer urgent parliamentary questions.

Her investigation is the excuse given by our prime minister for not saying even whether he was present at a party (or parties).

But Sue Gray is not a judge determining a matter in the courts, or an appointed head of a statutory inquiry.

Her investigation is not – and should not – be a reason for the prime minister or other ministers to escape straightforward accountability.

Sue Gray should not be a crucial element of the constitution – deciding, in effect, the fate of a Prime Minister and while doing so preventing ministerial accountability to parliament and the public.

No civil servant – even the cabinet secretary, let alone a more junior figure like Sue Gray – should be placed in this position again.

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The problem indicated by Johnson and his garden party is greater than just Johnson and his garden party

11th January 2021

Individuals were arrested, prosecuted and convicted for doing just what the Prime Minister and his circle did at his garden party.

Individuals made unimaginable sacrifices not to see loved ones at critical moments because they did not do what the Prime Minister and his circle did at his garden party.

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And last week, government supporters insisted that the Colston Four clearly broke the law and should be punished, regardless of what any jury said.

But this week, government supporters say that things are not clear and so we really should wait for Sue Gray’s report to tell us if there was any wrongdoing with is garden party.

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These tensions – contradictions – cannot hold in any sensible polity.

https://twitter.com/colinelves/status/1480816542816292865

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Or, at least these things should not hold in any polity.

The concern must be, in this horrid period of hyper-partisanship that such utter inconsistencies are not only permissible, but routine.

That like some say of Covid – one now has to get used to living with this anti-politics.

The only hope for sensible politics is that the Prime Minister will be undone by his hubris and is not replaced by another hyper-partisan leader.

Otherwise there is no point replacing one Johnson with another proto-Johnson, for the same problems will continue.

For the real problem is not so much Johnson –  but the political context that enabled him to become Prime Minister and keeps him as Prime Minister, notwithstanding the obvious faults and dishonesty.

And until and unless that permissive context is addressed, then we may just end up with more of the same.

There is something rotten in our polity – and Johnson is as much an effect of that as a cause.

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The Colston Four and the problem (and challenge) of legal commentary – in praise of Secret Barrister and Matthew Scott

10th January 2022

The acquittal of the Colston Four became a significant political issue – so significant that former ministers and government supporters even got to the point of dissing juries altogether.

But where was the best legal commentary – to explain what did (and did not) happen?

On state broadcasters?

On news sites?

No.

It was on social media – in particular, two blogposts done by barristers in their spare time.

One was this explanatory post by the Secret Barrister.

The other was on the blog of Matthew Scott: the actual directions to the jury.

Neither of these barristers had to do this – they volunteered to put this information into the public domain.

Neither of the bloggers did anything that could not be done by a well-resourced legal correspondent at a mainstream news site.

But there are very few legal correspondents anywhere in mainsteam media, and they would not have the time (or the editorial freedom) to provide such information for free to anyone on the internet.

The Secret Barrister and Matthew Scott provide not only an important public service but also fill a gap in what should (and is not) being provided to the public generally by news sites.

We are lucky to have them – and, given the ever-starker limitations on news budgets – we must cherish this volunteerism by legal professionals.

But what happens when such volunteerism comes to an end, for it is no longer viable for legal professionals?

Well.

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