Why Policy U-Turns are a Good Thing – but also can be a Very Bad Thing

8 November 2021

The news media are compiling lists of government u-turns.

Over at Politico, there is a list of thirty six u-turns in 23 months:

While over at the Daily Mail – under the generic byline of ‘Daily Mail Reporter’ – there is a list of forty three u-turns since January 2020:

(Hat-tip: Joel Taylor)

Some of these u-turns will be familiar, some you will have forgotten, and some you may have missed at the time in the whoosh of events.

Some are even reversals of positions that were expressly set out in the manifesto on which the current governing party was elected.

So much, then, for ‘the will of the people’.

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On the face of it, u-turns are a good thing – or at least the willingness of a government to change position on policy.

Imagine the current government not-turning on any of the 36-to-43 matters compiled in those two lists.

The complaint would be that our government was stubborn and unbending.

But we have government that is prone to u-turning instead, and we still complain.

Do we want a government to be open to changing its position or not?

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But.

Even though there can often be a sensible case for particular u-turns (though not all of them), the sheer number of them creates problems.

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The first problem is that it encourages sloppy and shoddy policy-making and decision-making.

In essence: ministers will tend to put less care into policies and decisions if they know they can deftly u-turn later.

The more a policy or decision is thought-through before it is announced or implemented, the less likely there will need to be any reversal.

Many of the examples listed simply show weak policy-making and and casual decision-making.

Too many u-turns show a general lack of seriousness about policy and government.

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The second problem is that it weakens electoral politics and thereby undermines accountability.

Voters elected the current government on a manifesto that actually said the following:

‘We will proudly maintain our commitment to spend 0.7 per cent of GNI on development, and do more to help countries receiving aid become self-sufficient.’

‘On entering Government in 2010, the Conservatives acted decisively to protect the UK’s pensioners. The ‘triple lock’ we introduced has meant that those who have worked hard and put in for decades can be confident that the state will be there to support them when they need it. We will keep the triple lock…’

‘We promise not to raise the rates of […] National Insurance […].’

The current government has reneged on each of these explicit promises.

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Of course: manifestos are weak mandates and they are certainly not binding contracts.

No sensible person would have wanted, say, the government elected in 1987 on an express commitment to introduce the ‘community charge’ (poll tax) to have carried on with that plan, come what may.

And any government will want the flexibility to deal with new political problems.

Yet: each of the three manifesto commitments was broken with not much more than a political shrug – as if it would not really matter that such promises were broken.

The promises made in the manifesto simply did not matter.

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And the third problem is that it undermines political legitimacy and participation generally – and not just regarding manifesto commitments.

The announcements of decisions and policies of the government become no more than babble – mere noise in respect of which there is no point trying to engage.

A government constantly announcing and then dropping things will, over time, mean that few will pay attention when the government does carry through hard and bad decisions.

You will note that few of the u-turns are about the ongoing authoritarianism and callousness of the current government.

Most of the most unpleasant policies are continuing all the same.

But other than obsessives – like you reading a post like this – few will keep up with tracking what is going on.

And so a culture of constant u-turns adds to the general fatigue about policy and politics.

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So: u-turns may well be welcome in the particular, but they are worrisome on the current scale.

Perhaps the government should fundamentally change this ‘u-turn culture’ and point policy-making and decision-making in the opposite direction.

If only there were a term for such a reverse manoeuvre…

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The consequences of Boris Johnson as Prime Minister: lies and corruption and the undermining of the functions of the constitution

7th November 2021

Yesterday this blog averred that the lies and corruption of the current government are consequences of the failure of the opposition to politically counter the rise of the current prime minister and his supporters.

This is the sort of politics that one will get when not enough is done to counter the appeal of such cynical politics to knaves and fools.

And there is no practical purpose to exposing lies and corruption when the electorate do not care sufficiently about those lies and corruption.

(Though it is still a public good to expose this anyway – even just for the record.)

The difficult task now for those politically opposed to the prime minister is not so much to expose lies and corruption but to make the electorate care about the lies and corruption.

To make voters want to have a principled-based politics instead of a principle-free politics.

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Today’s post develops these points by looking at lies and corruption from a constitutionalist perspective.

An account of the constitution of the United Kingdom (and of other countries) will often cite fine-sounding phrases such as the rule of law, accountability, and checks and balances.

Invoking these phrases sometimes have a magic effect, making the person using the phrase and the person hearing or reading the phrase to both nod-along.

Almost more like incantations rather than descriptions of constitutional principle.

But what is perhaps lost in the use of such elevating concepts is, well, what they actually mean – and what is the purpose of having such concepts.

Here we must go from the rarified air of the study of the constitutional law professor to the grubby back streets of the politically expedient.

The rule of law is the means by which rule-breakers are kept from breaking rules.

Accountability means that the dishonest cannot mask their dishonesty or the corrupt hide their corruption.

And we have checks and balances to stop those who will misuse and abuse power from having the freedom to do so.

Each of these concepts deal with grim truths about political – and indeed human – nature.

But each of these concepts, in turn, rest on a deeper constitutional foundation – the most important quality of any constitution.

That is: legitimacy.

Without legitimacy any constitution is essentially worthless.

Literally: the essence of that constitution will have no worth.

If a constitution does not have legitimacy then those elements of the constitution that exist to limit and prevent the knavery and foolishness of those with political power lose their effect.

And the consequence of this is that the politically expedient no longer need to hide in the political backstreets, with the constant worry of discovery and disapproval.

They can instead parade their knavery and foolishness in the public glare.

And this will be a consequence if the current prime minister and his political and media supporters continue with their assault on institutions that uphold the rule of law, accountability, and checks and balances.

There will be nothing within the constitution to stop them, for too few will care.

So in this way the politics of Johnson are both a consequence of a political-media culture that allowed him to rise but also may be a cause of a fundamental structural weakening of the polity itself.

Brace, brace.

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Looking at the lies and corruption as consequences rather than causes

6th November 2021

Here is a thought-experiment.

Imagine a policy position that a mainstream United Kingdom political party could adopt.

Imagine the prime minister supporting that speech in a public statement – in a speech, or a newspaper article, or a remark in an interview

And now imagine the prime minister saying just the opposite.

It is not only easy to imagine, but also to think of counter-examples of a mainstream policy position he would not take.

We have an infinitely flexible prime minister with no discernible consistency on any question of policy.

Of course, there is political – as opposed to policy – consistency: he will be motivated by advancing his own interests and those, where they coincide with his own, of his party.

But on any question of policy – as opposed to politics – there is no depth.

This is the politician who wrote two columns about Brexit.

This is also the politician who berated environmental policies before telling the United Nations that it was not easy being green.

(And anyone with the surname Green could have told him, that line often falls flat as a joke.)

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Perhaps these observations are, well, obvious – but that does not make it pointless to point them out.

And nor does familiarity with the prime minister’s lack of principle remove the need to work out the implications of this (lack of) approach.

One implication – which may be painful for some readers – is that it shows the failure of liberal and progressive forces..

For if a charlatan could have come to power on the back of liberalism and progressive politics, then the charlatan would have done so.

In this way the prime minister is not a cause but a consequence of a failure of liberalism and progressive politics.

The politics of this country since 2015 have been dominated not by Brexit victories but by two decisive Remain defeats – in 2016 and 2019.

There is no good reason why Remain lost the 2016 referendum.

Remain was the status quo, with economic benefits, and the policy of every mainstream party, and with the weight of government funding behind it.

But many supporters of membership were complacent.

The case for the European Union was never properly made by any senior politician, because there was no political interest in them doing so.

Parties and politicians thereby competed with each other to be sceptical of the European Union, with opt-outs and renegotiations and what-not.

And the prime minister only won the overall majority in the 2019 general election because opposition parties gifted him a general election on the issue of ‘Get Brexit Done’.

Before that general election, had opposition parties worked together in that hung parliament, it was plausible that there could have been a further referendum.

The prime minister did not create this Remain complacency and confusion, but he took full advantage of it.

Had the forces of Remain, and of liberalism and progressive politics, been less weak the prime ministers opportunism would not have been so successful.

Indeed: the charlatan would have switched sides, and switched columns.

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The rise of the current prime minister is the index of the failure of liberalism and progressive politics: a mirror-image, a shadow.

The more we complain about the prime minister’s principle-free approach to policy, the more we are really complaining about our failure to get the electorate to take a principle-based approach seriously.

As this blog has averred previously, there is no practical point in exposing lies, if the electorate does not mind being lied to.

And the same can be said of corruption: there is no practical point in exposing corruption, if the electorate does not mind the corruption.

The real task therefore for those opposed to the politics of the current prime minister is not just to expose and condemn the lies and corruption – for that is the easy bit – but to get sufficient electors to care about the lies and corruption.

For if that engagement cannot be achieved then we have the prospect of fundamental disconnect between policy and politics – for it would not matter the policy (or lack of policy) of the governing party, charlatans will be politically successful anyway.

And the starting point for those politically opposed to the prime minister is not to see his manifest faults as telling things about him, but also about the failures of those who opposed to him.

Johnson is not really the cause but the consequence of the defeats of 2016 and 2019, but the explanations for those defeats are harder for his opponents to consider.

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From Article 50 to Article 16 – the numbers change, but the lack of thought by the United Kingdom does not

5th November 2021

The government of the United Kingdom looks set to trigger Article 16.

The European Union is currently considering its various options when this much-advertised and threatened action takes place.

And there is little evidence that the United Kingdom has put any thought into what comes next.

The triggering is the thing, you see.

Doesn’t this all seem familiar?

Almost exactly the same as the lack of thought that went into the Article 50 notification.

And the government of the United Kingdom – having had to reverse its madcap attempt to change the commons standards regime – is seeking to disapply yet another set of rules with which it does not want to comply.

None of the current enterprise even has the merit of originality.

The same lack of thought, the same lack of seriousness, the same sheer tomfoolery, and the same drive to not be bound by rules, that are features of so many of this government’s escapades.

We can wonder what the government expects when – eventually – this trigger is pulled.

Perhaps they hope for a frenzy of cathartic exhilaration.

Perhaps puffs of magic.

Who knows.

But unless there is something not obvious to us on the outside, it looks like the government of the United Kingdom may again be wrong-footed and then have to accept whatever the European Union offers to close down the dispute.

Brexit is defined as doing the same thing again and again and expecting a different result, as a famous thinker did not once say.

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Was yesterday’s power-grab against the standards committee an over-reach?

4th November 2021

When those with public power believe they can get away with anything they eventually are confronted with reality.

All power has its limits, even (supposed) absolute power.

The government’s move against the parliamentary standards committee was nothing over than mere gangsterism – as this blog averred yesterday.

There is no possible defence by regard to constitutional principle or general political theory.

It was not even to protect a particular member of parliament.

The particular case in question was a pretext for the executive to undermine an unwanted check and balance.

And it must have seemed such a good idea at the time.

But the morning after: there is a reversal.

The government has perhaps realised it has gone too far.

The opposition parties will boycott the new regime.

That was a foreseeable eventuality – which, of course, this government seems not to have foreseen,

The government is now affecting that any change should be on the basis of consensus.

But that was as true yesterday as it is true today – and so the lack of cross-party consensus does not explain the u-turn.

The government may have simply gone too far – and has not got away with it.

Not all checks and balances are formal constitutional devices.

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When this government does not like a rule which binds it, the government will do whatever it can to circumvent, frustrate, remove or simply disregard that rule

3rd November 2021

There is an extraordinary situation today in the house of commons.

Yes, yet another extraordinary situation – and although such situations are becoming commonplace, they should never be regarded as normal.

The government is instructing its backbenchers to vote down a suspension of a member of parliament who seriously breached lobbying rules.

The government is also seeking to re-write those rules.

As the deputy leader of the opposition rightly said at prime minister’s questions: “when they break the rules they just remake the rules”.

And this, of course, is part of a trend.

Here is one colleague at the Financial Times:

And another:

The overall trend is that if this government does not like a rule which (supposedly) binds it, the government will do whatever it can to circumvent, frustrate, remove or simply disregard that rule.

It is not so much ‘one rule for them, and another rule for us‘ but no rules for them.

And this at a time where the authoritarians in government seek to impose more and more rules on the public – especially those who its political and media supporters do not like.

At base this is not even about ideology.

There is nothing here so grand that can be articulated as any broad principle or general theory.

This is just akin to gangsterism.

Those under the protection of the centre – and those at the centre – should face no constraints on their autonomy.

While those on the outside of this protection, are under what ever obligations that centre believe should be imposed.

The problem for this being a driver of government in a democratic society is twofold.

First: not all governments exist forever, and there will be one point – eventually – where those on the inside will be on the outside.

And second: governments in a democracy ultimately require legitimacy – and doing ‘what works’ cynically can eventually have a counter reaction when the government needs broader support than whatever it can get away with.

So these antics may be clever, but they are not wise.

The public may not care now – and it may not ‘cut through’ – but sensible heads should steer the government away from this illiberal and misconceived approach.

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We are on the other side of that Brexit line

2nd November 2021

At the time of the important parliamentary votes on Brexit, and during the endgames of the negotiations on the Brexit withdrawal agreement, there was a sense from Brexiters of ‘Get Brexit over the line’.

Everything else was mere detail, which could be dealt with later.

The important thing for many Brexiters was not to waste this one shot.

The longer the delay, and the more there were extension periods, the more there was a real risk that the Brexit project would get reversed.

“Yes,’ was the attitude, ‘just tell us where to sign’.

And now: we are on the other side of that ‘line’ which Brexit ‘got over’.

It is not a happy place, at least for many Brexiters.

This is not what they wanted, even if this is what they signed up for.

But this was the Brexit which was possible at the speed they wanted Brexit to ‘get done’.

Given this eventuality, there are two possible reactions for those ‘over the line’ Brexiters.

One is to admit that this is all the price that was to be paid for Brexit to happen at all.

The other is to deny that that this was what was agreed and to say that Brexit should be on another basis.

If I were a Brexiter I would be glad that departure actually happened – after the delays and extensions and the loud campaign for a further referendum.

It was not so long ago that the 2019 general election was in the future and a hung parliament had control and, but for the failure of opposition leaders to agree, there would have been a further referendum.

The attempts now by Lord Frost and others are to re-argue positions that failed to get into the withdrawal agreement.

Positions that, had they been adhered to at the time of the Brexit negotiations may have meant no departure at all – as parliament had decided against a no-deal departure.

Trade-offs had to be made to get Brexit across that line.

And now that line is behind us.

This was the price they paid to get Brexit.

And it was not inevitable, given the politics of the 2017-19 parliament, that they would have got Brexit done at all.

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Has an American court recognised a ‘cocaine hippopotamus’ as a legal person?

1st November 2021

One of my interests in law is not about human beings and their constitutional ups and downs, but about something which (I aver) is of fundamental importance.

That is the extension of rights to animals that are recognised and enforceable by courts, and the acceptance that animals can be legal persons.

This should not be a strange proposition: after all, we confer rights and legal personality on corporations which do not actually (that is directly in a tangible form) exist.

This is not to say animals should have absolute rights (other than against human cruelty), but then again few human rights are absolute.

And if minors and the incapacitated (as well as corporations) can have their rights enforced on their behalf then there is no reason, in principle, why the rights of animals cannot be enforced on their behalf too.

It is just that, unless there is a reason not to do so, a court should be able consider the rights of an animal in any given situation.

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But, as a commentator, one has to take cases and other legal developments as you find them, and so that brings us to today’s subject.

The hippopotamuses of a drug lord.

This is the story of the hippopotamuses that descended from those that formerly belonged to Pablo Escobar.

(That is not a sentence I ever expected to type.)

This was the Guardian news report (based on a news agency report).

Huge, if true.

An American court conferring personality on an animal.

However, if you look at the report carefully, that is not quite what has happened – though what has happened is a welcome development.

The group which handled the American litigation is the Animal Legal Defence Fund.

Their press release is here.

In essence, the American court was asked to make an order in respect of litigation in Colombia.

The hippopotamuses are a party to the Colombian litigation.

From the press release, it appears that the American court had an application under this provision: Assistance to foreign and international tribunals and to litigants before such tribunals.

In that provision you will see this passage:

“The order may be made […] upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.”

Stripped of the hippopotamus dimension, this is about a court in America making an order for the benefit of a party to litigation in another jurisdiction.

On this occasion, that party happened to be hippopotamuses, as opposed to a natural person or a corporation.

We have not seen the actual order of the American court (or a judgment), but going on the basis of the press release, that is more-or-less what the court did (with emphasis added):

“In granting the application pursuant to 28 U.S.C. § 1782 to conduct discovery for use in foreign proceedings, the court recognized the hippos as legal persons with respect to that statute.

“This U.S. statute allows anyone who is an “interested person” in a foreign litigation to request permission from a federal court to take depositions in the U.S. in support of their foreign case.

“The U.S. Supreme Court has said that someone who is a party to the foreign case “no doubt” qualifies as an “interested person” under this statute.

“The Animal Legal Defense Fund reasoned that since the hippos are plaintiffs in the Colombian litigation, they qualify as “interested persons” under this statute.”

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What the American court has decided, it seems, is not so much that an animal is a legal person but that the fact a party to foreign litigation happens to be an animal is not a bar to being an “interested person” under one statutory provision.

This does not mean the hippopotamuses are now legal persons for all purposes should they somehow manage to come to America.

Nor does it mean that the hippopotamuses have had any substantive rights (or perhaps even any procedural rights) recognised by the court.

The decision means only that hippopotamuses can be brought within a procedural definition.

In essence: a party to foreign litigation was accepted as being a party to foreign litigation.

They just happened to be hippopotamuses.

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Still: it is a start.

An American court could have (conceivably) have rejected the application on the basis that hippopotamuses are not capable of being persons, and so could not even be interested persons for this one procedural provision.

And a minor decision like this can be a move towards wider recognition in the next well-chosen case.

In America as in the United Kingdom we are some way off animals being accorded legal personality and having rights recognised by and enforceable in courts.

This case is a hippopotamus’s step towards that objective.

But on close examination the case perhaps does not live up to the news report headlines.

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The UK state’s admitted collusion in the death of Pat Finucane should inform public debate on immunities for state agents and operatives

31st October 2021

My column in Prospect this month is on the ‘licences to kill’ that exist in the law of the United Kingdom.

But in case any person thinks that article is alarmist or somehow academic in averring the existence of such provisions and their implications, reference should be made to the circumstances of the death of Pat Finucane.

These circumstances are not as well known as they should be, and they should inform any consideration of the law and practice of lethal force by or on behalf of the United Kingdom.

These are three things to know.

First: the lawyer Pat Finucane was killed in 1989.

Second: in 2012, Sir Desmond Da Silva, the author of a government-commissioned report, concluded:

“Overall, I am left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA in February 1989 had it not been for the different strands of involvement by elements of the State. […]

“The real importance, in my view, is that a series of positive actions by employees of the State actively furthered and facilitated his murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice.”

(Paragraph 115 here.)

Third: the then prime minister of the United Kingdom David Cameron admitted and apologised for this collusion:

“The collusion demonstrated beyond any doubt by Sir Desmond, which included the involvement of state agencies in murder, is totally unacceptable.

“We do not defend our security forces, or the many who have served in them with great distinction, by trying to claim otherwise.

“Collusion should never, ever happen.

“So on behalf of the Government, and the whole country, let me say again to the Finucane family, I am deeply sorry.”

(Column 297 here.)

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There is, of course, a lot more that should be known about the killing of Pat Finucane by anyone interested in the history of Northern Ireland and in the history of the United Kingdom state.

But it should be more widely known that there is no doubt that the United Kingdom state colluded in the death of a civilian and the United Kingdom state has admitted and apologised for its collusion in this death.

This is therefore not the extreme accusation of some anti-government agitator but the confirmed position of the United Kingdom state itself.

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And so the possibility is not fanciful that powers and immunities that the United Kingdom state confers upon itself may be misused by the United Kingdom state.

The possibility of misuse is such that there should be anxious scrutiny of these powers and immunities.

The United Kingdom state does not say that it wants to kill people.

But by granting itself – and its officials and operatives – immunity from any legal liability, it is creating a situation where there is no legal disincentive from ensuring unlawful deaths do not happen.

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All because Article 16 is a thing you can trigger, that does not make it a gun (continued)

30th October 2021

Article 16 of the Northern Irish protocol is the news, again.

There are breathless news reports that it is about to be ‘triggered’.

The use of ‘to trigger’ as a verb – like, say, ‘to activate’ – makes it sound rather dramatic.

And certain political and media types are indeed building up a sense of occasion.

The triggering of article 16 is becoming a political virility test.

One can imagine a minor character in a science fiction or superhero comic with ‘Article 16 has been triggered’ as their one line of dialogue, with the next frame of the story the horrified or bewildered faces of the major characters.

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And perhaps Article 16 will be triggered – and that the government really, really means it this time.

Perhaps the triggering of the article will precede some political deal between the United Kingdom and the European Union.

But the one thing that will not directly happen is anything that formally warrants this giddy excitement.

For, as this blog has averred (here, here and here), triggering Article 16 means that the United Kingdom and the European Union enter into discussions in respect of ‘safeguarding’ measures for the Northern Irish protocol.

And any safeguarding measures have to meet strict and objective requirements and cannot have any wider or longer effect than necessary.

Article 16 is a useful feature of the protocol – but it really does not, on its actual terms, live up to this star billing.

Well, as far one can see when as looking at this as a lawyer.

Of course, the usual proviso of any law and policy commentary is that law and politics are not the same thing.

And parties can say they have met with triumph and disaster unconnected to any actual process, and those in politics and media will chap or jeer accordingly.

But.

Looking at Article 16 calmly it is difficult to discern how it corresponds with the current political hyperventilation.

Someone, somewhere is missing something.

 

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