There will be many things about Brexit which will seem foolish or knavish.
Bad things that will make you sad or mad.
But usually you can work out the ‘why’ about the thing in question – even if you disagree with it, or even loathe it.
It may be that somebody was incompetent or dishonest.
But there will be an explanation of some kind.
There is, however, one thing – at least – which will always be incomprehensible.
Why did the Democratic Unionist Party and other unionists in Northern Ireland support Brexit – either so strongly or at all.
The shared membership of the European Union north and south of the border on the island of Ireland was the best guarantee of the continuation of the union.
There would never be any great urgent need for a border poll, and no great urgent need for any fundamental change, from any perspective.
But by supporting Brexit – and supporting the Conservative government policy of Brexit meaning departure from the single market and the customs union – this has made a border poll more likely and also a vote for a united Ireland more likely.
If a mischievous demon had been tasked with finding the most effective way of sabotaging the union, that demon would also have cheered on first Brexit and then the Theresa May/Boris Johnson approach of departing from the single market and the customs union.
It is a decision so incomprehensible that the two usual explanatory models of bad political decisions – foolishness and knavery – do not provide assistance.
For to posit either as an explanation is to imply that a thing is explicable, rather than inexplicable.
As a scientist would say: it was not even wrong.
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In today’s Sunday Telegraph there is a short, 750-word opinion piece by Vernon Bogdanor, the eminent professor of government.
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Previously I have criticised Bogdanor for not appreciating the constitutional significance of the Good Friday Agreement – see here and here – to which he responded here.
My view is that he has a vision of the constitution that holds that the position before the Good Friday Agreement is the norm from which politics and law have since deviated.
If you look at that exchange, you can form your own opinion on the merit or otherwise of my view.
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Bogdanor’s latest opinion piece is about the Northern Irish high court decision last week in respect of the challenge by unionists of the Northern Irish protocol – a case which this blog touched upon here.
The judgment is some 68-pages but is readable and is worth reading.
Bogdanor spends the first part of his article setting out a general account of the submissions made by the applicants and he then briefly summarises the court’s decision.
His summaries are not the ones that I would write – but they are unexceptional even if not balanced.
And then.
The article takes a turn.
We get to the final three paragraphs, and something happens.
Let’s take these paragraphs in order – and sentence-by-sentence.
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‘The uncodified British constitution allows Parliament to decide that Northern Ireland should be subject to different goods regulations and trading rules from the rest of the UK.’
The second part of that sentence is generally correct – though it is hardly the fault of our uncodified constitution.
Such a decision could easily have taken place under a codified constitution.
It was, of course, a decision for which the government had a mandate in the December 2019 general election as part of the ‘oven-ready deal’.
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‘But Unionists hold a different view of the constitution.
‘They hold that loyalty to Westminster is not unconditional, but dependent upon respect for the Union.’
This is a rather significant thing to say – and it contends that the legitimacy of the United Kingdom state is ultimately contractual – even transactional – as that loyalty is dependent on ‘respect’.
The implication of this would appear to be that if the United Kingdom state is in breach of this contract then the unionists no longer should abide by the law of parliament.
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‘That is why in 1974, a power workers strike by Unionists brought down the Sunningdale Agreement, which had provided for a cross-border Council for Ireland giving the Republic what Unionists believed was excessive influence over Northern Ireland.
Is Bogdanor suggesting there could, as a matter of fact, be similar civil disobedience now?
Or is Bogdanor even averring that such civil disobedience would be justified under our uncodified constitution?
It is not easy to tell.
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‘The Unionists are Queen’s rebels.’
I am not sure what Bogdanor means by this.
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‘Where then stands the Protocol?
‘The EU Commission has agreed to the Government’s request to extend the grace period for chilled meat for three months.
‘But that merely kicks the can down the road.
‘In any case, the argument is not about sausages but about whether Northern Ireland is to be cut off from the rest of the UK.’
Here we perhaps go from the salami to the ridiculous.
The dispute is, of course, more than about sausages – but to escalate it to it being about the very union does not necessarily follow.
There are a range of resolutions to this dispute – either through the mechanisms of protocol or by amending it – all of which are consistent with the continued existence of the union.
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‘The court in Belfast is, however, right to this extent.
‘The question of whether the Protocol is constitutional is one not for the courts but for politicians.’
Here the contentions of the opinion piece appear to become confused.
A couple of sentences ago, Bogdaonor was saying that there could (and even perhaps should) be civil disobedience.
Civil disobedience means direct action outwith the processes of political institutions – that is out of the hands of politicians and the formal political process.
Unless, of course, what he means by ‘politicians’ are the leaders of the envisaged civil disobedience.
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‘The case for the Unionists is based on the Enlightenment principle of consent of the governed.’
Is this proposition correct?
The basis of unionism is the positive belief in membership of the United Kingdom, a belief that would still have force even if (or when) it becomes a minority view in Northern Ireland.
If (or when) that does come to pass, would a united Ireland (as endorsed in a border poll) be an imposition on the unionists?
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‘Sadly, the Unionists of Northern Ireland, together with Kurds and Israelis, are deemed not to be entitled to the benefits of this principle by progressive theologians.’
No, I am not sure what this means either.
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‘But it is, nevertheless, a principle which should be enthusiastically championed by the Conservative and Unionist party of the United Kingdom.’
This is the last sentence of the article, and its import is unclear.
The Conservative Party is currently the governing party of the United Kingdom and it stood on an explicit manifesto commitment to get Brexit done by means of the withdrawal agreement – which contained the Northern Irish protocol.
For them to now switch would mean negating a manifesto commitment on which they won an emphatic victory in a general election dominated by the issue of Brexit – a general election that treated the whole of the United Kingdom as a single political unit.
This treatment of the United Kingdom as a single political unit was also, of course, adopted at the time of the 2016 referendum, where a majority the voters of Northern Ireland (like Scotland) voted to stay in the European Union.
Presumably the decision of the parliament of the United Kingdom to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland was also a breach of some enlightenment principle or other.
And when the Conservative Party do not ‘enthusiastically champion’ what Bogdanor wants them to champion, what then?
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Another constitutional principle – also in part from the Enlightenment, as it happens – is that of the rule of law.
The ‘rule of law’ is not mentioned in Bogdanor’s 750-word piece, which still found room for mention of both the ‘Queen’s rebels’ and ‘progressive theologians’, and is a shorter phrase than either.
The contention that unionist loyalty is ultimately conditional despite the law of parliament is reminiscent of “there are things stronger than parliamentary majorities” – a phrase with an unfortunate history in the context of Ireland.
4. Andrew Bonar Law, the pugnacious Conservative leader, told a demonstration: "there are things stronger than parliamentary majorities". He almost certainly helped supply weapons to the Ulster Volunteers: a paramilitary army dedicated to armed resistance aginst an Act of Parlt. pic.twitter.com/TfEwmvjGdz
A general strike – such as in 1974 – was not the only way that unionists in Northern Ireland have taken it upon themselves to prevent a perceived breach of the perceived contract between the government and the governed.
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To the extent that Bogdanor is warning in a positive way that peace and stability in Northern Ireland requires sincere and proper regard to the unionists then no sensible person can gainsay him.
But to the extent (if any) that Bogdanor is contending that the uncodified constitution and the principle of the consent of the governed justify a resort to resistance and rebellion (queenly or otherwise, and unarmed or otherwise) and discard for the rule of law then I fear he has fallen into error.
Bogdanor is right to say that political questions should be dealt with politically and not by the courts, but such questions also should be dealt with in accordance with the law.
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Over on Twitter, the educationalist and head teacher Katharine Birbalsingh set out in a thread her thinking about school rules.
So as to reduce the scope for any misrepresentation, here is the thread in full:
Why are school rules good?
Because as society has laws, schools need order.
Otherwise bullying/harassment. Lord of the Rings.
Parents want lovely schools but you won’t get them without rules or intense selection.
And yes, your kid needs to follow the rules too 1/6 THREAD👇🏼
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
But we don’t enforce silence or sitting up straight in society, so why in schools?
Our prisons are packed. We remove permanently those who won’t obey laws.
Schools can’t/won’t do that for most part.
They need a way to ensure a culture of order or the weakest get trampled 3/6
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
While more funding is always nice and some teachers aren’t up to the job, the main thing that makes a school good or bad is its CULTURE.
And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.
Unless you have a selective intake. 5/6
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
It is like teaching a toddler to say thank you or please.
‘You don’t get the chocolate until you say thank you.’
That’s a rule most parents teach and insist on over years until the habit is embedded.
It is the same for sitting up straight or not hollering in corridors. 6/6
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
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My immediate response to this earnest exposition was to tweet that it was priceless that a thread about academic standards started off by confusing Lord of the Flies with Lord of the Rings.
This was what would have been called in the days of the school standards urged, a ‘howler’.
And this howler prompted treasured memories of Alan Partridge’s Hot Topic:
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Caller: ‘Well I enjoyed the Hobbit more than “Riverdance”. And I think that lots of boys on an island killing a fat boy is not so enjoyable as Gandalf, with a long white beard.’
Alan Partridge: ‘Okay, if you’ve just joined us, we’re talking about who is the best lord. “Lord of the Rings”, “of the Dance” or “of the Flies”. That’s tonight’s “hot topic”.’
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Katharine Birbalsingh was not amused:
Your rudeness and pettiness is also priceless although more disappointing. Mine was a slip. Yours was not.
— Katharine Birbalsingh (@Miss_Snuffy) July 3, 2021
And so, as a courtesy, and with my immediate point having been made, I deleted my tweet.
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But as a further recompense for my irksome tweet, I thought I should set out some thoughts about ‘rules’ – in schools and elsewhere.
After all, this is a blog about law and policy – and laws are rules, and education policy is a policy.
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One important quality that rules should have is, as Katharine Birbalsingh avers, consistency.
But there are other important qualities.
Another important quality of rules is credibility.
If a rule seems daft – indeed absurd – then it will be difficult for the individuals affected to take the rule seriously.
And if a rule is not taken seriously, people will tend not to comply with the rule, and those charged with enforcing the rule will tend to avoid enforcing it.
So, for example:
‘But we don’t enforce silence or sitting up straight in society, so why in schools?’.
The reason why those rules would not be enforced in society is because they would be daft rules, and they would be derided.
There are enough problems in getting people to comply with the legal rules that do exist:
‘Our prisons are packed.’
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Another important quality of rules is that they are proportionate and just – both in their nature and in their enforcement.
But a problem with strict rules – especially those with onerous sanctions – is that there can be no restraint on those enforcing the rules.
The enforcers become the bullies.
Power tends to corrupt, as some old liberal once said, and absolute power corrupts absolutely.
And so we come to the crux of Katharine Birbalsingh’s argument:
‘…the main thing that makes a school good or bad is its CULTURE. And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.’
[Block capitals in the original.]
One way of thinking about this proposition is to replace the word ‘school’ with the word ‘society’:
‘…the main thing that makes a society good or bad is its CULTURE. And that culture is hugely dependent on strict rules to ensure a few don’t ruin it for the many.’
In this recasting, you have what is the essence of illiberal totalitarianism.
Your rights are restricted, but it is only for your own good, and to protect you from the Other.
Given that the thread jumps from points about schools to those about society, it is not (I hope) unfair to set out this transposition, and its implications.
Back in the context of a school (or indeed any particular institution within society), the imposition and enforcement of strict rules can be the means by which the few (those who impose and enforce rules) can indeed ‘ruin it for the many’ (those who have to comply with those rules – or else).
Strictness as an end in and of itself can be as much a means of bullying of the ‘many’ as what the strictness purports to address.
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Now we come to the hobgoblins on the beach.
The schoolchildren in Lord of the Flies.
These are the horrors – the marooned turnip-ghosts – from which we need to protect our children.
If adults do not step in, it will go all Lord of the Flies.
https://www.youtube.com/watch?v=3jFqhjaGh30
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A good response to Katharine Birbalsingh’s point here is this tweet:
Slip aside, does it not strike you that your point is undermined by the fact that the children in Lord of the Flies had attended schools with strict discipline?
— (no offence to Imagine Dragons, who suck) (@country_jim) July 3, 2021
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Lord of the Flies is one of those books about which anyone who knows of it will have an opinion about it.
And often that opinion will have been formed (or imposed) at school when it was a set text.
There is, of course, not one ultimately correct view of any literary text.
(This is where literature perhaps differs from law, where the conceit is that each legal text has an ultimate correct meaning – ho ho.)
In her thread, Katharine Birbalsingh was positing (or was intending to posit) the island in Lord of the Flies as the world of lawlessness – the anarchy, the chaos that every small-c conservative fears:
‘Because as society has laws, schools need order. Otherwise bullying/harassment. Lord of the [Flies].’
Of course, one of the places in our society which are nearest to the anti-ideal of this lawlessness, where bullying and harassment are rife are, well, prisons:
‘Our prisons are packed. We remove permanently those who won’t obey laws.’
And, other than a few dozen full-life sentence prisoners, the intention is that all convicts – over 80,000 of them – are to return to society after this experience of bullying and harassment.
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The counter-argument to Katharine Birbalsingh’s thread is that the imposition and enforcement of strict rules as an end in themselves can become a means of the ‘bullying and harassment’ that she claims to want to avoid.
Or the rules may become discredited and thereby pointless.
The important qualities for any body of rules are consistency (on which she is right) but also credibility and proportionality.
Otherwise the rules become part of the problem, and not part of the solution.
Rules are crucial – and as a law and policy commentator, I would say that wouldn’t I, else I would have nothing to commentate on – but their strictness is not an important quality.
Credibility and fairness are far more important than strictness.
Rules are an essential means of moderating power relationships – and they prevent those with power from injuring or exploiting those without power.
The principle of the rule of law means that legal rules bind the mighty as well as the weak.
And so to function properly rules need to have legitimacy, and not just firmness.
For, when rules lose their legitimacy…
…it all goes a bit Lord of the Flies:
‘“We’ll have rules!” [Jack] cried excitedly. “Lots of rules! Then when anyone breaks ’em–”
[…]
‘Jack was the first to make himself heard. He had not got the conch and thus spoke against the rules; but nobody minded.
[…]
‘“The rules!” shouted Ralph.
‘“You’re breaking the rules!”
‘“Who cares?”’
Who indeed.
**
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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.
**
Please support this blog – and please do not assume it can keep going without support.
If you value this daily, free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
***
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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
