This is not a party partisan blog and there are good and bad in all mainstream parties (though some parties have more good than others).
But it is a liberal constitutionalist blog, and so the two recent defeats for the governing party are a good thing: the politics of inclusion and solidarity seem (just about) to have defeated the politics of exclusion and division.
The fragile coalition that bought the current government to power in December 2019 – in effect, to ‘get Brexit done’ and to ensure that the then leader of the opposition did not become prime minister – may turn out to be unsustainable.
So what?
This is of interest to those with strong feelings about party politics – but are there any implications for law and policy, from a non-partisan perspective?
Perhaps.
One of the features of the illiberalism of the current government seems to be a belief that constitutional and cultural conflict ‘play well’.
So you have the sight of infantile government ministers picking fights and attempting to provoke ‘culture wars’.
And you have the loud trumpeting of attempts to further dislocate constitutional arrangements – with the executive seeking to undermine the checks and balances provided by the courts, the legislature, the impartial civil service and diplomatic corps, and so.
Each attack intended to impress and mobilise the minority electoral base that is believed to be sufficient to keep this illiberal government in power.
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But it seems not to be working any more.
The lever may have come loose.
If this is the case – if – then there are two possible things that may happen: bad and good.
The bad thing would be that government ministers and their supporters want more illiberalism!
More division and exclusion!
More constitutional conflict and culture war!
Or, a good thing: government ministers and their supporters may come to their senses as they realise the diminishing political returns for their illiberal (and vile) confrontational politics.
Any sensible person would hope for the latter.
But nobody who has followed politics since 2016 could be confident that such a welcome development will occur.
So it all could get worse.
Brace, brace.
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This is from a submitted comment under one of my posts on the Daniel Morgan independent panel report (of all things):
‘Now, why would DavidAllenGreen want to assist the corrupt Establishment in hiding the Truth from the British public. Does Green hold the public in contempt too?’
The rest of the comment, and the commenter’s earlier submitted comments, will not be published, because I cannot vouch for the substance of the serious allegations.
But the lack of this publication does not mean, I hope, that I wish to assist the corrupt Establishment in hiding (either capital-T or lower-case-t) Truth/truth from the British public or indeed from anybody else.
Indeed, this blog has done as much as it can to set out commentary in respect of the serious and substantiated findings of ‘institutional corruption’ against the metropolitan police.
I have even done a video film for the Financial Times on ‘institutional corruption’ in the metropolitan police, which is hardly an example of the establishment protecting the establishment.
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But to gain traction with any serious charges of corruption, one needs a methodical, evidence-based approach.
An approach where the ‘c’ word – corruption – is the natural description of what is otherwise set out in detail and is sourced.
There is no doubt that there is widespread corruption, for that is the nature of those with power – and there is no doubt that more could be done by the media to expose the corruption.
But nothing useful is gained by putting the cart before the horse – or the dinghy before the national flagship.
There are different ways of going about it – and because this blog prefers an evidence-based approach in its commentary that does not mean that it is an establishment stooge.
(Perhaps this blog would say that, wouldn’t it?)
The difficulty with making out charges of corruption or of other serious failures is not in making the accusation – which is easy – but in making the charge difficult to evade or dismiss.
Of course, in this post-truth age of hyper-partisanship it may well be that sources and details are not enough – and here on thinks of the accumulation of adverse information about Donald Trump or Boris Johnson – but if anything is to ever have impact, it will need to have some substance to it.
The ‘corrupt Establishment’ is deftly skilled in brushing off even the most serious of complaints and is especially good at deflection when there is more heat than light.
In making it as difficult as possible for things to be deflected is not to hold anybody in contempt.
It is instead to takes things seriously.
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There has been another ‘constitutional case’ arising out of Brexit – this time from Northern Ireland.
The full judgment is here – and in summary the court holds that the Northern Irish protocol is lawful.
In doing so the court has, among other things, held that even if the protocol was in conflict with the Act of Union, the protocol would prevail.
This required the court to compare and contrast two ‘constitutional’ statutes – the Act of Union and the Brexit withdrawal legislation.
Other ‘constitutional’ cases, such as the two Miller cases, have required the courts to balance examples of the prime ministers discretion (Article 50 notification and prorogation) with the doctrine of parliamentary supremacy.
And indeed every ‘constitutional’ case in the United Kingdom requires the courts to balance different elements of the constitution.
But what no ‘constitutional’ case in the United Kingdom does is to compare and contrast a thing against a codified constitution.
In this way it could be contended that the United Kingdom does not have true constitutional litigation – at least in the way others in the world would understand the term,
A case may have constitutional themes, and engage the elements of the state, but for the court it is just an exercise in constructing powers and rights, and in interpreting legal texts, just as with any other case.
A case may thereby be constitutionally important without being what lawyers in other jurisdictions would regard a ‘constitutional’ case.
And that is why constitutionalism in the United Kingdom is – or should be – about taking checks and balances seriously.
Because ultimately that is the essence of our constitutional arrangements.
Checks and balances are all we have got.
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Every so often someone posts or tweets a succinct summary of the direness of a predicament.
And yesterday the Guardian live blog managed to put all the following into a single blog update:
None of these are a check or balance in the classic constitutional sense, such as the judiciary or parliament as a whole (though, of course, the speaker is one of the five).
And if only one of these example were sidelines, one could dismiss it as part of the rough tumbles of practical politics.
But taking all five together, there is a trend that should concern anyone – apart from the hyper-partisan supporters of the government.
Each example tells of the lack of constitutional self-restraint that that is the stuff of constitutionalism.
(Constitutionalism being the view that there are political rules and norms that have priority over partisan advantage.)
And these five examples are in addition to the disregard the prime minister has to the checks and balances in the classic constitutional sense: the judiciary, parliament, the independent civil service and diplomatic corps.
This is not – yet – a constitutional crisis, for as the two Miller cases and the Benn Act show, it is still possible for other elements of the constitution to ultimately assert themselves.
But is certainly all part of an ongoing assault on constitutionalism.
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The recent report from the independent panel on Daniel Morgan used the concept of ‘institutional corruption’ – and on this you can see my Financial Times video here and my post here.
But the deployment of such a term makes one think of other terms that come and go in law and policy – and one such term is ‘maladministration’.
It is an odd term – it does not quite mean ‘illegal’ or ‘unlawful’ and so it does not fit into the neat binary of what is called ‘public law’ – the law that regulates what public bodies can and cannot do.
In principle, it would appear that a thing is capable of being maladministration without it also necessarily being unlawful – either as a matter of public law or as an instance of misconduct/misfeasance in public office.
The notion is that maladministration goes to the thing being complained of having an administrative remedy – rather than a judicial remedy.
‘[the ombudsman] may investigate any action […] to which this Act applies, being action taken in the exercise of administrative functions of that department or authority, in any case where […] a member of the public […] claims to have sustained injustice in consequence of maladministration in connection with the action so taken […].’
The act, however, does not define ‘maladministration’ – and all one can glean from the provision quoted is that the term is something to do with the performance of an administrative function.
In R v Local Commissioner for Administration for the North and East Area of England, ex p Bradford Metropolitan City Council (1979), the court of appeal averred that ‘maladministration’had an open-ended meaning, covering ‘bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on’.
This is a broad definition.
In 1993 the ombudsman said that ‘maladministration’ included an ‘unwillingness to treat the complainant as a person with rights; refusal to answer reasonable questions; knowingly giving advice which is misleading or inadequate; offering no redress or manifestly disproportionate redress; and partiality’.
These are serious things – indeed these can even constitute criminal offences.
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Given the breadth of the definition of ‘maladministration’, and the seriousness of what it can cover, it is strange that we do not have more use of the word in the public discussion of failures in the public sector.
For example, the Guardian and the Financial Times each seem to have used the word only twice in respect of United Kingdom matters in 2021.
And this is despite ‘maladministration’ being a term recognised at law and for which parliament has provided a scheme for administrative remedies.
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Why do we hear so little of the term ‘maladministration’?
The reason cannot be that there is no maladministration – from the post office scandal and the Daniel Morgan report to the problems to do with Covid procurements and the exams fiasco, maladministration, like love and Christmas, is all around.
At least the failures that are covered by the word ‘maladministration’ are all around.
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So these leaves two possibilities.
Either: the system of administrative remedies is working so well that that the maladministration that does take place is quickly remedied and the complaints resolved.
Or: the system of administrative remedies is not working, and so complainants are having to resort to public law and other means for their complaints to be addressed.
If the latter, this could mean that the reason we hear so little of the word ‘maladministration’ is that is not a practically useful term.
And if that is the case – that the reason we hear so little of the term ‘maladministration’ is that it is not practically useful – then why would that be the case, when parliament has set up an elaborate (and expensive) ombudsman scheme to deal with ‘maladministration’?
Given the ombudsman scheme – formally known as the the parliamentary commissioner for administration – and given the sheer amount of public sector failings, one would expect that the term ‘maladministration’ would be a commonplace in law and policy discussions.
But it hardly features.
So: is the real reason we hear so little of the term ‘maladministration’ in United Kingdom law and policy that the scheme of (to use the ombudsman’s full title) is not working?
Some posts coming up on this blog are going to find out.
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Having set out what the Daniel Morgan independent panel meant by ‘institutional corruption’ in my last post, and having done a Financial Times video on how the panel applied that definition to the metropolitan police, the obvious next questions is whether any other public bodies would also come within this definition.
Or is it a term that can only apply to the metropolitan police in respect of specific matter over a specific period?
If the term ‘institutional corruption’ is to have any import, it must presumably be capable of being applied to other institutions and in respect of other corruption.
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To remind ourselves, this is how the panel defined corruption in its report:
‘The Panel has adopted a broad definition of corruption for the purposes of its work.
‘The definition below is based on the key elements of dishonesty and benefit, and allows for the involvement of a variety of actors and a variety of forms of benefit:
‘The improper behaviour by action or omission:
‘i. by a person or persons in a position of power or exercising powers, such as police officers;
‘ii. acting individually or collectively;
‘iii. with or without the involvement of other actors who are not in a position of power or exercising powers; for direct or indirect benefit :
‘iv. of the individual(s) involved; or
‘v. for a cause or organisation valued by them; or
‘vi. for the benefit or detriment of others; such that a reasonable person would not expect the powers to be exercised for the purpose of achieving that benefit or detriment.
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More succinctly, the test for corruption can be set out in four stages:
(1) WHAT – acts and/or omissions constituting the improper behaviour;
(2) WHO – by a person or persons in a position of power or exercising powers (and this may involve other people too);
(3) WHY – for the direct or indirect benefit of the person(s), their organisation or other people; and
(4) REASONABLENESS – a reasonable person would not expect that WHAT to be done(or not done) by WHO for that WHY reason.
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The panel saw the following failings by senior managers as fulfilling the WHAT + WHO + WHY + UNREASONABLE requirements:
‘i. failing to identify corruption;
‘ii. failing to confront corruption;
‘iii. failing to manage investigations and ensure proper oversight;
‘iv. failing to take a fresh look at past mistakes and failures;
‘v. failing to learn from past mistakes and failures;
‘vi. failing to admit past mistakes and failures promptly and specifically;
‘vii. giving unjustified assurances;
‘viii. failing to make a voluntarily commitment to candour; and ix. failing to be open and transparent.’
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Such corruption would be ‘institutional corruption’ according to the panel as follows:
‘when […] failures cannot reasonably be explained as genuine error and indicate dishonesty for the benefit of the organisation, in the Panel’s view they amount to institutional corruption”
The key term here is ‘dishonesty for the benefit of the organisation’.
Accordingly the full test for ‘institutional corruption’ appears to be:
WHAT + WHO + WHY + UNREASONABLE + BENEFIT OF ORGANISATION
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The recent scandal of the post office prosecutions comes to mind as another situation that would meet this definition – especially the knowing non-disclosure and attempts to mislead the court.
The panel themselves mentioned ‘the report of the mid-Staffordshire NHS Foundation Trust Public Inquiry, the report by Mark Ellison QC on his review concerning the Stephen Lawrence investigation, the report of the Hillsborough Independent Panel and the subsequent report by the Right Reverend James Jones KCB, the report of the Gosport Independent Panel, and the work of the public inquiry into the Grenfell Tower fire.’
And I am sure some of you can think of others.
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The independent panel report on Daniel Morgan found that the Metropolitan police was – and is – institutionally corrupt.
To dispute this finding – let alone to attempt to repudiate or refute it – requires you to do one (or both) of two things.
Either you have to challenge the facts on which the finding is based – and this is difficult in respect of the Daniel Morgan report, which is comprehensively sourced and footnoted (and all the report’s critical findings would also have been put to those criticised for their response as part of the preparation of the report).
Or you have to challenge the definition itself.
And so this blogpost sets out the definition adopted and then applied by the panel in the compilation of the report.
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The relevant part for the definition is deep inside the report, on pages 1022 to 1025 of this pdf (page numbers 1017 to 1021 of the document itself).
The starting point is the terms of reference for the panel, which included:
‘The purpose and remit of the Independent Panel is to shine a light on the circumstances of Daniel Morgan’s murder, its background and the handling of the case over the whole period since March 1987.
‘In doing so, the Panel will seek to address the questions arising, including those relating to:
‘[…] the role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption […].’
(Please note that in this post I break the paragraphs of the report out into sentences for flow and sense.)
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The panel, however, did not just proceed from the terms of reference, but sought to understand what ‘corruption’ meant in this context:
‘The Terms of Reference give a vague formulation of […] the role played by police corruption in protecting those responsible.
‘There are two possible interpretations of this.
‘It could mean that,
‘i. one or more police officers became aware after the murder of who was responsible and protected them; or
‘ii. one or more police officers who were not aware of who was responsible for the murder committed corrupt acts for their own reasons, and in so doing compromised the investigation with the result that there was no evidence capable of proving who was responsible for the murder and of bringing them to justice.’
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The panel then said that it was taking its term of reference,
‘[…] the role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption […]’
to mean,
‘whether there was any police corruption affecting the investigation of the murder and making it impossible to bring whoever was responsible to justice’.
Here the panel had regard to the metropolitan police’s own admission that there had been a ‘failure to confront the role played by police corruption in protecting those responsible for the murder from being brought to justice’.
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So that it how the panel was to interpret its term of reference.
But this does itself not tell us what the ‘corruption’ word means.
As the panel noted:
‘The Panel’s Terms of Reference do not include a definition of corruption.’
As the terms was not defined in there terms of reference, the panel had to work out its own definition.
In doing so, the panel looked at other definitions and uses of the word:
‘The Panel has therefore developed its own definition, drawing upon the definitions of corruption and corrupt behaviour used by relevant bodies.
‘Such bodies include the Independent Police Complaints Commission and its successor organisation, the Independent Office for Police Conduct, the National Police Chiefs Council, the College of Policing and the Metropolitan Police.
[…]
‘To inform its analysis, the Panel has drawn upon the report of the mid-Staffordshire NHS Foundation Trust Public Inquiry, the report by Mark Ellison QC on his review concerning the Stephen Lawrence investigation, the report of the Hillsborough Independent Panel and the subsequent report by the Right Reverend James Jones KCB, the report of the Gosport Independent Panel, and the work of the public inquiry into the Grenfell Tower fire.
‘These inquiries and reports provide important insights into serious failures of a variety of public services, including but not limited to the police, and address the complex issues of accountability and corruption.’
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Having had regard to how other inquires and reports have defined and used the word ‘corruption’, the panel also considered the common definitions and uses of the word:
‘The generic definition of corruption is ‘dishonest or fraudulent conduct by those in power, typically involving bribery’.
‘This definition suggests that for dishonest conduct to amount to corruption the person acting corruptly must be someone in power or exercising powers.
‘This definition would apply to police forces, prison, probation and healthcare services, or other organisations serving the public.
‘In these settings, ‘corruption’ may denote the misuse of authority in terms of deviance from the law, professional norms, ethical standards or public expectations.
‘In common parlance ‘corruption’ is also used to refer to the venal behaviour of persons who do not hold positions of power, but who do have something to sell, or who act as corrupters in that they bribe persons exercising powers to commit corrupt acts: it follows that people within and outside the police may be involved in ‘corrupt behaviour’.’
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Having had regard to these other definitions and uses, the panel then went back to its own terms of references:
‘The Panel’s Terms of Reference require it to consider, primarily, wider questions relating to corruption.
‘It is asked to address:
‘i. ‘police involvement in the murder’.
‘By any reasonable person’s definition, if police officers commit or assist in planning a murder, it is not only the most serious crime of taking a person’s life, but it is also the gravest breach of the duties of a police officer.
‘ii. ‘the role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption’.
‘The ‘corruption’ is not explained further, but the Terms of Reference refer to the fact that ‘in March 2011 the Metropolitan Police acknowledged “the repeated failure of the MPS [Metropolitan Police Service] to confront the role played by police corruption in protecting those responsible for the murder from being brought to justice”.
‘iii. ‘the incidence of connections between private investigators, police officers and […] the media and alleged corruption involved in the linkages between them’.
‘To do this, the Panel has adopted an expansive approach to ‘corruption’, including the conduct of the police and the behaviour of other individuals linked to the police or involved in corrupt activity with them.’
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So having considered how the term ‘corruption’ is or had been used elsewhere – from similar reports to common parlance, and having also considered what the word must mean in the context of the terms of reference, the panel then set out the definition of ‘corruption’ for the report.
It was a broad and deliberately flexible definition:
‘The Panel has adopted a broad definition of corruption for the purposes of its work.
‘The definition below is based on the key elements of dishonesty and benefit, and allows for the involvement of a variety of actors and a variety of forms of benefit:
‘The improper behaviour by action or omission:
‘i. by a person or persons in a position of power or exercising powers, such as police officers;
‘ii. acting individually or collectively;
‘iii. with or without the involvement of other actors who are not in a position of power or exercising powers; for direct or indirect benefit :
‘iv. of the individual(s) involved; or
‘v. for a cause or organisation valued by them; or
‘vi. for the benefit or detriment of others; such that a reasonable person would not expect the powers to be exercised for the purpose of achieving that benefit or detriment.
‘The Panel has used this definition to consider the conduct of the police officers involved in the investigations of the murder of Daniel Morgan.
‘The Panel includes in its wider definition of corruption some instances of failures on the part of senior officers/managers, acting as representatives of their organisations.
‘The documentation reveals the following wide range of actions and omissions by senior postholders on behalf of their organisations; many of these actions and omissions have been identified in the reports of other independent panels and inquiries:
‘i. failing to identify corruption;
‘ii. failing to confront corruption;
‘iii. failing to manage investigations and ensure proper oversight;
‘iv. failing to take a fresh look at past mistakes and failures;
‘v. failing to learn from past mistakes and failures;
‘vi. failing to admit past mistakes and failures promptly and specifically;
‘vii. giving unjustified assurances;
‘viii. failing to make a voluntarily commitment to candour; and ix. failing to be open and transparent.’
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The panel were also aware that important in understanding any practical definition is an understanding of what is not included:
‘[…] failings do not all automatically fall within the definition of corruption. Some may result from professional incompetence or poor management.’
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And now the panel comes to what it meant by ‘institutional corruption’:
‘However, when the failures cannot reasonably be explained as genuine error and indicate dishonesty for the benefit of the organisation, in the Panel’s view they amount to institutional corruption.
‘A lack of candour on the part of the Metropolitan Police in respect of its failings is shown by a lack of transparency, as well as prevarication and obfuscation.’
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The panel then amplifies or illustrates this ‘institutional corruption” term elsewhere in the report:
‘The family of Daniel Morgan suffered grievously as a consequence of the failure to bring his murderer(s) to justice, the unwarranted assurances which they were given, the misinformation which was put into the public domain, and the denial of the failings in investigation, including failing to acknowledge professional incompetence, individuals’ venal behaviour, and managerial and organisational failures.
‘The Metropolitan Police also repeatedly failed to take a fresh, thorough and critical look at past failings.
‘Concealing or denying failings, for the sake of the organisation’s public image, is dishonesty on the part of the organisation for reputational benefit and constitutes a form of institutional corruption.’
[…]
‘When failings in police investigations are combined with unjustified reassurances rather than candour on the part of the Metropolitan Police, this may constitute institutional corruption.
‘The Metropolitan Police’s culture of obfuscation and a lack of candour is unhealthy in any public service.
‘Concealing or denying failings, for the sake of the organisation’s public image, is dishonesty on the part of the organisation for reputational benefit.
‘In the Panel’s view, this constitutes a form of institutional corruption.’
[…]
‘Unwarranted assurances were given to the family, and the Metropolitan Police placed the reputation of the organisation above the need for accountability and transparency.
‘The lack of candour and the repeated failure to take a fresh, thorough and critical look at past failings are all symptoms of institutional corruption, which prioritises institutional reputation over public accountability.’
The report also provides explicit illustrative examples of institutional (as opposed to non-institutional) corruption on pages 1073-1075 of the pdf (page numbers 1069-1071).
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The report describes the careful consideration that went into defining both ‘corruption’ and ‘institutional corruption’.
The challenge, therefore, for those who wish to dismiss the finding of the independent panel that there was (and is) institutional corruption at the metropolitan police is either to deny the examples or to fault its definition and application.
It may be that some of those defending the metropolitan police see nothing (that) wrong in the internal solidarity and reputational protection that the panel describes as ‘institutional corruption’.
That it is not denied that bad things happened, but that they cannot be described as ‘institutional corruption’.
They may just not like such a term being used of such things.
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Given the care with which the panel considered and then defined (and then applied) the word ‘corruption’ that was expressly part of its terms of reference, any casual knee-jerk dismissal will not be sufficient.
A critic has to do better than to shake their head.
As I have set out in this Financial Times video, the panel have made out a substantial charge of ‘institutional corruption’ – and so this now requires an equally substantial response from the metropolitan police.
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In this Financial Times video out today – no paywall! – I have sought to set out how the 1,200 page, three volume independent panel report on Daniel Morgan substantiates the core charge of ‘institutional corruption’ at the metropolitan police.
Please click through and watch it – and leave any comments below.
(The more clicks and views, the more likely I will be able to do more law and policy videos at the FT – so if you value my law and policy commentary, please do have a look.)
Last June, after the death of George Floyd and the rise of the Black Lives Matter movement and the toppling of the statue of Edward Colston, I did a thread on Twitter pointing to the historic complicity of the legal profession in slavery.
The Yorke-Talbot opinion was an important and consequential legal document.
The opinion had the effect of legitimising slavery in Great Britain for decades.
Yet, it was not a judgment or an act of parliament or a royal charter or indeed any text usually regarded as having the force of law.
It was, as its name tells us, an opinion.
But it was the opinion of the government’s two most senior law officers for England and Wales: the attorney general and the solicitor general.
And although in those days such figures could also do private client work, the offices of the two lawyers meant that this opinion had the highest authority.
To modern eyes, however, the striking feature of the opinion is just how flimsy it is.
The relevant text in its entirety is:
‘In Order to rectify a Mistake, that Slaves become free, by their being in England, or Ireland or being baptized, it has been thought proper to consult the King’s Attorney and Solicitor General in England thereupon, who have given the following Opinion, subscribed with their own Hands.
‘We are of opinion, that a slave coming from the West-Indies to Great-Britain or Ireland, with or without his master, doth not become free, and that his master’s property or right in him is not thereby determined or varied; and that baptism doth not bestow freedom on him, or make any alteration in his temporal condition in these kingdoms. We are also of opinion, that his master may legally compel him to return again to the plantations.’
You will see there is no authority cited, nor the application of any legal principle, nor the setting out of any jurisprudential reasoning.
A bare assertion of the law that would embarrass a law student in their first-term
Here is a facsimile of an early published version:
(A judge incidentally also associated with practically ending witchcraft trials.)
The consequence of the Yorke-Talbot opinion was to provide a legal device which all those involved in slavery and the slave trade – lawyers, traders, insurers, owners and so on – could rely on in the case of any doubts as the legality of slavery and the slave trade.
A piece of paper to wave in the face of any moral scruples or legal doubt.
A piece of paper with the high authority of the attorney general and the solicitor general.
It was the comfort and security needed for hardened men of business who made their fortunes and earned their professional fees out of this trade in human misery.
The great extension of British involvement in the slave trade was a feature of the period after 1729 – all under the legal cover of this Yorke-Talbot opinion.
Hardwicke is a famous name in English legal history, and so things are named after him.
When I was called to the Bar by Lincoln’s Inn, one of the scholarships that I was awarded was a Hardwicke scholarship (though they have recently been renamed entrance scholarships) and this paid for certain administrative fees attendant on becoming barrister.
Another thing named after Hardwicke is a set of barristers chambers in Lincoln’s Inn (where I once did a mini-pupillage).
There are other things too – it is just one of those great legal names, like Halsbury or Denning.
I did not think anything concrete would come of my thread, other than to generate interest in the often unpleasant history of the legal profession.
I understand I am one of the legal bloggers referred to in that statement.
Hardwicke chambers, who were already changing location, had decided to use the move as an opportunity to change their name at the same time.
What happened was that, prompted by the thread and the interest it generated, I am told senior members of that chambers went off to research the subject for themselves:
For those who want to learn about Yorke-Talbot Opinion (Hardwicke) re slavery can I recommend reading this thread – wouldn’t want others to continue to show their ignorance of history! Thanks @NicholasGLeahhttps://t.co/ZlmyyWTwc1
And so – in the great traditions of the Bar – an independent chambers had been gently persuaded of a change of name and had done so on the basis of research and evidence.
Unfortunately one government minister, a senior barrister, decided that this smacked of woke-ism:
Lincoln’s Inn is named for Henry de Lacy, Earl of Lincoln (c.1251-1311). Gray’s Inn is named for Reginald de Grey, 1st Baron Grey of Wilton (c.1240-1308. Both were confidants of and advisers to Edward I, who expelled the Jews from Britain in 1290. Are they to be renamed too? /1
This was a silly intervention from someone who knows (or should know) better.
It indicates that the minister does not know (or does not care) about the exceptional nature of the Yorke-Talbot opinion and of its dire consequences.
One would have hoped that a minister in the department of justice would have congratulated a chambers for showing independence and making a decision based on persuasion and evidence.
Anyway, he was gently put right:
Thanks David. When we discovered (15.6.20 for the record – entitled to say should have known earlier) Ld Hardwicke’s support for slavery for a diverse set to perpetuate his legacy including taking his name to our new premises was untenable. No pressure from anyone else.
The curious thing is that (similar to Edward Colston) the sheer number of things named after Hardwicke obscured rather than revealed his role in history.
What had been ‘erased’ from history was the York-Talbot opinion – and it is a document that should be better known to lawyers, historians and the general public.
Changing the name of a chambers (or of a scholarship) certainly does not erase Hardwicke – indeed, he is now more widely known about (again, like Edward Colston).
And a better understanding of how the legal system and lawyers facilitated slavery provides us with a fuller understanding of our own history.
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One thing which seemed especially odd was that it was announced by the prime minister’s office – and the only mention of the royal navy or of the ministry of defence was that navy would crew the boat.
There was no mention – explicitly – of which government department would pay the procurement/commissioning of the ship – nor of which government department would be responsible for its envisaged thirty years of maintenance and repair.
As a former central government public procurement lawyer, this seemed strange.
The announcement seemed, well, just flimsy – the shallowest of press releases.
Since then it has become obvious why the announcement was so flimsy.
The reason is that the thinking behind the announcement also has been flimsy – if it can be characterised as thinking at all.
‘The Cabinet Office, which was originally asked to devise the plans, the Department for International Trade, which was originally expected to benefit from them, and the Ministry of Defence, which has now been saddled with the project, are all in the dark about where the money is coming from, not least because the MoD is fighting to plug a £16 billion black hole in its annual budget.
[…]
“‘Another official confirmed: “The royal yacht is a complete and utter shitshow. When it was first floated, the PM wanted it to be built in Britain. It was given to [Cabinet Office minister Michael] Gove to sort out, but it became clear that under procurement rules it could only be built here if it was a navy thing with a bunch of fake weapons on board. So Gove passed it on to the MoD. The Treasury stayed out of it.’
None of this is a surprise; indeed, all of this can be inferred just from a close critical reading of the original announcement.
Anybody with even the most basic awareness of public procurement would realise that if this was a civil (non-military) project, there could be no legal restrictions as to which tenderers would be considered.
‘Downing Street has backed down from insisting that the Ministry of Defence should foot the whole bill for new royal yacht Britannia in a Whitehall row about the funding of the £200m vessel.
[…]
‘The Ministry of Defence (MoD) is resisting being lumbered with the cost of the project at a time when it is trying to fill a £16bn backlog in its equipment budget.
‘On Monday, Downing Street indicated that the yacht would be paid for out of the defence budget, with a spokesperson saying: “The procurement process, which is being done through the MoD, will reflect its wide-ranging use and so it will be funded through the MoD.”
[…]
‘No 10 then clarified on Tuesday that the MoD would initially only pay for the procurement process, and that the rest of the costs has not been allocated.
‘A Downing Street spokesperson said: “This is a ship that will promote UK trade and drive investment back into our country. So we expect any costs of building and operating the ship will be outweighed by the economic benefits that it brings over its 30-year lifespan.”’
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This is what public policy-making and decision-making looks like when it is made up as it goes along.
The most plausible explanation is that nobody in government has a clue about how to go about the procurement exercise for this boat.
I am not a lobby journalist – and so I can add not other telling quotes from insiders, but I can add something.
Prompted by the announcement, I thought I would make a freedom of information request.
I made the request to the cabinet office, on the understanding that the cabinet office was the department responsible for that announcement of national flagship – and that was also the department that would deal with freedom of information requests for the prime minister’s office.
And today came the response to the request.
The cabinet office does not possess a business case for the national flagship – even though it was the department that announced it.
This odd situation can perhaps be explained as follows, either:
– there is a business case held in Downing Street, but my request clumsily missed it;
– there is a business case held in Downing Street, but the cabinet office has given me false information;
– there is a business case for this announced procurement, but it is held in another government department and has not been shared with the prime minister’s office or the cabinet office; or
– there is no business case, despite the public announcement.
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What we do know is that a business case should always precede a procurement exercise – and so the fact that a government department may then handle the procurement exercise does not mean that the business case is then created.
That would be to put the dinghy before the boat.
Business cases precede procurement exercises – and should determine whether there is a procurement exercise or not.
The reasonable suspicion of anyone following this daft exercise is that there is no business case – and that this prestige procurement was announced without any preliminary thought whatsoever.
And now the government cannot back down.
And this is how £200 million (at least) is to be spent by the government.
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