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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First: corruption and other failings do not only go in one direction.
The problem that is most associated with the Morgan case is that corruption meant that the original investigations did not go far enough.
And this report certainly details the failings of those first investigations.
But what those following the case will perhaps not appreciate is that the later investigations can be regarded as having gone too far.
In particular, the manner in which the most recent investigations went about procuring and even contriving evidence so as to get the prosecutions is uncomfortable reading.
When the court threw out the prosecutions in 2011, it has to be said that the court was right to do so.
There were serious problems about how the prosecution case had been put together.
And botched, over-zealous investigations and prosecutions serve nobody – and even create false hopes
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Second, and I will set out in more fully in a Financial Times video later this week: the panel substantiate their finding of ‘institutional corruption‘.
The panel define this term with care and show what comes – and what does not come – within the definition.
The panel then applies the defined term consistently, and the report provides a number of sourced examples illustrating institutional corruption – and showing implicitly why no lesser term would be as apt.
Those – such as former metropolitan police commissioner Ian Blair – who aver that there is no evidence of institutional corruption either have not read the report or are being dishonest.
The evidence is there – detailed and sourced and evaluated – and it is difficult if not impossible to gainsay that it fulfils the defined term.
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Third: we may know more why the successive investigations and prosecutions failed, but we are no nearer knowing who murdered Daniel Morgan, and why.
If anything, the report shows the weaknesses of a number of theories about why Daniel Morgan was murdered – for example, the claim that Daniel Morgan was about to expose police corruption.
The murder case is still open – and, indeed, the report even points to a couple of new lines of enquiry.
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And finally: some (minor) criticisms.
The numberings of sections and paragraphs of the report are difficult to follow – with paragraph numbering re-starting completely (and confusingly) with each chapter, and this makes it difficult to cross-refer between different parts of the report.
The report should have had a table of recommendations and conclusions – for currently the recommendations (many of which are important) and conclusions are scattered throughout the report and hard to find.
But these criticisms go to form, rather than substance.
In substance, the report will be hard to dislodge as an indictment, and it needs a stronger defence from the metropolitan police than a pretence that there is no evidence of institutional corruption at all.
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One of the themes of my law and policy commentary on this blog and elsewhere is that a culture of ‘constitutionalism’ is more important than constitutions – and that demands for a ‘written constitution’ should be not be seen as more urgent than demands for a constitution that works.
Constitution-mongers – to use the pejorative phrase of Edmund Burke – may serve up for sale eloquent and elegant texts, detailing which institutions should do what in an ideal polity.
But the basis of any worthwhile constitution is not the exposition of what each institution of the state can and should do, but what will check and balance each element of the state.
A worthwhile constitution is one that goes along with the grain of political behaviour, and not cut across it on the basis of what ‘should’ happen.
Those with executive power will naturally resent those who can hold them to account.
Those with legislative power will naturally be at odds with those who interpret and adjudicate upon their legislation.
Those with judicial power will often want to substitute their views for those who are charged with legislative power or executive power.
And so on.
The value – the merit – of any constitution is how well it deals with conflict between the elements of the state.
Like a contract, the purpose of a constitution is not to provide for what happens when the relevant parties are in harmony – for then there is no recourse to any legal instrument or set of arrangements.
A constitution – like a contract – is there to regulate the consequences of things going (foreseeably) badly.
The quality of understanding which things can go (foreseeably) badly is worldliness.
And constitutional worldliness, in turn, is the characteristic of those who realise that the content of constitutional texts is not enough – it is more about how the rules and values set out in those texts are enforced.
Those constitutions which have as their premise that there will be conflicts, and then provide how those conflicts will be practically regulated and resolved, are more likely to endure than those with heady, eye-catching lists of rights and freedoms and neat lists of separated powers.
Constitutionalism is the belief that there are principles and rules about how a political system is arranged that have a greater priority than the partisan interests of any politician or party.
Constitutionalism is a way of thinking – and so a polity with few formal checks and balances can have a stronger constitution than one with lots of glittery provisions that are ignored and derided.
Those with the power of the state will tend to want to abuse the power of the state.
Constitutionalism is about how this tendency is, in the real world, checked and balanced.
And any constitution without such worldliness is hardly a constitution at all.
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Every so often there will be some politician – usually Michael Gove but sometimes someone else – who will urge that there be ‘public sector reform’.
This reform should be ‘radical’ or ‘fundamental’.
Heads will nod, and hands may even clap.
Worthy pdfs will be clicked on earnestly, only for the tabs to be then left unread.
And then nothing really happens until the next time some politician – usually Michael Gove but perhaps someone else – will urge that there be ‘public sector reform’.
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What is often missing in many of these heady, fine-sounding proposals is the one thing that would genuinely be radical or fundamental.
This would be to force public sector bodies to disclose information against their will.
For as long as public bodies – politicians and officials – can pick and choose what information can be disclosed publicly, there can never be any meaningful reform of the public sector.
There needs to be a tension – a check and a balance – in respect of any public body’s estimation of itself and its performance.
Unfortunately – as typified by the cabinet office under Michael Gove – there is a general public sector disdain for transparency and freedom of information.
There always seems to be some reason to keep public sector information secret – from ‘national security’ to ‘commercial confidentiality’.
Indeed, the most dismal and insincere official documents in existence are freedom of information non-disclosure decision letters.
Everyone involved knows that the content of such letters is faithless guff – but nobody with any power seems to care.
When there is no duty of disclosure and no duty of candour there can be no holding of the public sector to account.
And if there is no way of holding the public sector to account then any ‘public sector reform’ will not succeed against the private interests of the officials and politicians involved – nor against the interests of external suppliers.
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So, to mimic David Hume, there is something to ask of any public sector reform, whether it is proposed by Michael Gove or somebody else:
Will the proposed public sector reform result in the public sector disclosing information that it otherwise would be unwilling to disclose?
No?
Will the proposed public sector reform mean that officials and politicians – and relevant third parties – being candid when they otherwise would not be?
No?
Then commit the proposed public sector reform to the flames, for it will contain nothing but sophistry and illusion.
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Think of a normal, day-to-day process of the United Kingdom state.
And then try to think of examples when that process has succeeded in holding the state accountable – that is against the government’s wishes.
It is not easy.
Freedom of information is impotent.
The public services ombudsman is inefficient (at best).
Debates on the floor of the house of commons – and ‘opposition days’ – provide little more than Westminster theatre.
The prime minister casually lies at the weekly set-piece of political accountability, without any sanction or shame.
Written parliamentary questions take an age to be answered – and the answers given are often useless.
Government press offices are expensive exercises in not providing any help other than to the careers of those who staff them.
The only exception is that, from time to time, a parliamentary select committee can publish a report that hits through – though this often is down to the capabilities and qualities of whichever clerks work for the committee, than to the MPs and peers which formally comprise the committee’s membership.
And so because the normal processes of the state are generally so weak that we end up with ad hoc processes such as inquires and court cases to force the state into accounting for its actions (and inactions) against its will.
Think here of the post office scandal litigation, and think of the Hillsborough and Daniel Morgan panels.
And there are other examples.
(And imagine how many examples there are where there have not been such determined campaigners dedicated in getting at the truth.)
Ad hoc exercises in practical accountability such as court cases and panel inquiries are, however, often undermined (as this blog averred yesterday) by a legal inability to force disclosure against the state’s will or interests.
And each success in forcing accountability by means of a court case or an inquiry usually has equal and opposite significance as an example of failure of the institutions of the state to have held other parts of the state properly accountable in the first place.
In particular: the failure of parliament to be an effective check on the executive.
There is a severe accountability gap in the state of the United Kingdom.
And it is from this gap so many other political problems emerge.
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Techies have a phrase for it: ‘garbage in, garbage out’.
Or GIGO, for short.
What this means, of course, is that the quality of the outputs of any given process are determined by the quality of the inputs.
This basic, rather obvious point is often missed by those who demand ‘inquiries’ into all sorts of apparent state failures.
The emphasis is often placed on it being ‘judge-led’ or whatnot – that is, the form that the inquiry should take.
But this is to prioritise form over substance.
And this is because any inquiry – and indeed any formal decision-making process such as a trial – is only as good as the information to which it has access.
If you control the flow of information to an inquiry (or trial) you then have significant control over the outcome.
In particular, if you control what information the inquiry does not get – even though that information is relevant and available – then you, in effect, neuter the inquiry.
This is why any duty of disclosure is a crucial element in respect of any inquiry.
If the police (in the examples of the Hillsborough inquiry and the Daniel Morgan independent panel) or the post office (in respect of the horizon scandal) deny documents exist, or refuse to give access to information, or simply refuse to disclose incriminating or embarrassing evidence, then the inquiry will be undermined.
And this is regardless of the qualities of the judges or other heads of the inquiry, or the scope and eloquence of the terms of reference, or the public interest in the matter.
GIGO.
And any entity that faces criticism or embarrassment – or even criminal liability – will not willingly disclose evidence which can be used against it.
Nor will the individuals that comprise those entities.
They will hire specialist lawyers, skilled and experienced in ‘managing’ disclosure – who will ensure the interests of their clients are protected without any law being actually broken.
All of this should not be any surprise.
And so why the obligations of disclosure are perhaps the most important thing to get right if you want any inquiry to be of any use.
Not who is the judge or on the panel, or what the terms of reference are, and so on.
Let the inquiry get the evidence that matters.
Otherwise: GIGO.
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