The extraordinary newspaper column of the Home Secretary – and its implications

9th November 2023

The extraordinary newspaper column of the Home Secretary – the Home Secretary! – should be either consequential (in that the Home Secretary loses their job) or significant (in that it signifies something about the government that does not sack this Home Secretary).

But in neither situation, should it be treated as normal, and it should not just be shrugged off as an ambitious politician seeking advancement. It should matter, one way or the other.

This blog does not offer commentary on Israel/Palestine/Gaza – as this blog does not have any special knowledge or understanding about the Middle East.

But this blog does follow the constitutional (and operational) relationship between central government and the Metropolitan Police, and it also follows free expression issues and Irish matters.

And in respect of each of those things, the Home Secretary’s column is (at best) unfortunate and (at worst) horrific.

It is a rare Home Secretary who makes the Metropolitan Police – the Metropolitan Police! – look liberal.

If the Home Secretary keeps their job after this, their intervention should not be forgotten. It was a crass and illiberal assault on the constitutional (and operational) independence of the police, against freedom of expression, and based in part on a mangled and limited understanding of Irish history.

This intervention should not have any place in our polity, even in these unusual political times.

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Drafts of history – how the Covid Inquiry, like the Leveson Inquiry, is securing evidence for historians that would otherwise be lost

All Saints’ Day, 2023

The Leveson Inquiry ended badly: the recommendations of the report were botched and then ignored.

But the Inquiry was not without value: the Inquiry placed into the public domain substantial evidence about the nature of the news media that otherwise would have been lost. As such the Inquiry was a boon for the public understanding of the media, even if it was a failure as a means of bringing about regulatory change.

We cannot know yet whether any recommendations of the current Covid Inquiry will be similarly of little or no import. But, as with the Leveson Inquiry before it, it is a boon of the public understanding of those with power – though this time it is revealing the doings and goings-on of those with political power instead of media power.

This is because the Covid Inquiry has “teeth” with its powers to obtain evidence. And without such teeth there can never be real accountability. The sound of accountability are the complaints and greivances of those being forced to disclose evidence against their will.

Of course, the Covid Inquiry has not got all the evidence it wants – and some of the excuses for non-disclosure seem at best implausible. But the Inquiry has got far more than any attempt by parliament or the press to hold ministers and officials accountable.

And there is no reason to believe that the actions and attitudes revealed by the disclosed evidence before the Covid Inquiry is exceptional: one can only presume that, say, Brexit was dealt with in the same way. That evidence, however, is forever hidden from us.

But the Covid Inquiry is giving us a snapshot of the nature of political power in Whitehall in the early part of this decade – and one which will assist historians for generations.

Part of the value of statutory inquiries is not in the results but in the process and what is revealed in the process – and, perhaps paradoxically, that is why many public inquiries are also indicative of the failure of our political institutions and media to otherwise hold the state properly to account.

Proportionality is an incomplete legal concept

25th October 2023

The legal(isitic) concept of proportionality does not exist in a vacuum, for it is a term for the relationship between means and objectives

There is an old line shared by English lawyers that, for the High Court, domestic law is a matter of law, foreign law is a matter of fact (on which the court may take expert evidence), and international law is a matter of fiction.

And for those who take the (not entirely unreasonable) view that law needs to be capable of enforcement so as to be termed “law”, the nature of international law is problematic.

(Here we mean what is called “public international law” – the law which in general applies to state and international actors, rather than “private international law” which is about cross-border transactions and other private law relationships.)

One can say [A] or [B] is in breach of international law, but unless there is a court or tribunal of competent jurisdiction available and capable of determining the question, statements about international law can just seem like many assertions and expressions of opinion.

But, even if there is no likelihood of any case ever reaching a court, states often say they have regard to international law in what they do.

The current news from Israel and Gaza raises the question of compliance with international law.

Many have strong views on what is happening in Israel and Gaza.

The best explainer I have come across (via David Anderson on X/Twitter) on the application of international law to what is happening in Israel and Gaza is this one.

And you will see that the key concept here is one of that most tricky of all legal notions, proportionality.

The only point this general legal blog can add is that the legal(istic) concept of proportionality does not exist in a vacuum – a thing is not, at law, proportionate or disproportionate in and of itself, for the concept describes a relationship between things.

The concept of proportionality makes legal sense (if it makes any legal sense at all) when it is applied to the relationship between means and an objective.

The legal concept of proportionality will then provide a way of assessing whether particular means go further than necessary in meeting particular objectives.

Of course, this tells you nothing about the merits of a proposed action and of the legitimacy of an objective.

And so it is a legal concept, in public international law and other areas of law, which can raise questions rather than answer them.

But if one has a view on whether what any state actor is doing is proportionate or disproportionate under international law then one also has to be as precise as possible as to the actual means and to the specific objectives to which the concept is being applied.

And some will say that some means may never be proportionate to any legitimate objective.

Only on-point (and sensible and constructive) comments will be published below – there are other places on the internet for other comments.

“Computer says guilty” – an introduction to the evidential presumption that computers are operating correctly

This is first in a series of posts on the Post Office Horizon prosecutions scandal

The Post Office prosecutions scandal is the United Kingdom’s greatest mass miscarriage of justice of our times.

The scandal, however, is also difficult to write about.

Partly this is because many of the personal and systemic failures in the scandal are so maddening that any attempt at objective explanation and detached commentary can quickly become a rant.

And it is partly because the matter is so complex that very few will have mastery of all the legal and other documents and evidence. For example, the key 2019 judgment of Mr Justice Fraser – a judgment which also happens to be one of the greatest forensic exercises undertaken by any modern judge – is over a thousand paragraphs long, even without its appendices.

Nonetheless, there have been some outstanding accounts and analyses of this sorry situation. In particular, the journalist Nick Wallis has produced a book which should be read widely on the mess. There is also now a statutory inquiry which is seeking to get to the bottom of what happened, and why it happened, and how it should not happen again.

The focus of many of the accounts and much of the commentary has, rightly, been on the numerous personal and systemic failures – especially those of the Post Office management and their lawyers, and those of the software provider Fujitsu.

Those personal and systemic failures are central to what happened: none of the miscarriages of justice would have occurred without decisions by individuals (and groups of individuals) which could and should have been made differently.

And some of those decisions are such that the individuals involved should themselves be prosecuted.

But this post – and the posts which will follow this, as part of a series – is on another failure which was part of the mix.

This is the failure of the law itself and of the procedures of the courts.

And if anything, this failure of the law itself and of the procedures of the courts makes the individual decision-makers more culpable – for they knew (or should have known) how harsh the applicable law and procedure would be on the defendants, but the defendants would be prosecuted anyway.

Nothing in an account and explanation of the applicable law and procedure should be taken to limit the culpability of the Post Office management and their lawyers, and of those at the software provider Fujitsu.

In this first post let us start with what lawyers called a “presumption”.

The classic statement of this presumption is as follows:

“In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time”.

Here “mechanical instruments” include computers.

So, in other words, computers are presumed to be operating correctly, unless there is evidence to the contrary.

As a “presumption” this does not mean that the court will take this view each and every time, regardless of circumstance.

It is instead a starting-point which can be rebutted.

It is what the court will take to be the state of affairs, unless it is satisfied by evidence that it is not the state of affairs.

There is nothing inherently wrong about a court using presumptions: indeed, without presumptions, the courts could not properly operate.

Presumptions keep almost all legal cases manageable. For example, a contract will be presumed not to be a fraudulent instrument, unless it is shown to be a fake; or a defendant may be presumed not to be insane, unless shown to be insane; and so on.

Presumptions tell us what will be taken to be the state of affairs – and which party has the onus of showing whether that state of affairs is not correct.

The problems with any presumption are in what it presumes, and in what is needed to rebut it.

If the presumption is unrealistic in and of itself, or if rebuttal is unrealistic, then the presumption converts from being something that assists the course of justice to something that causes miscarriages of justice.

The presumption that computers are presumed to be operating correctly, unless there is evidence to the contrary is what lawyers call “a presumption of evidence”.

This means that a court can be satisfied that a relevant fact can be established just by computer records, unless there is evidence that the computer is not working properly.

And so when the computer record shows, for instance, a financial shortfall by postmaster or postmistress, the court will accept that as evidence of an actual shortfall – unless the defendant can show that the computer was not operating correctly.

In short, when the computer record is the essence of a prosecution case: computer says guilty.

This evidential presumption has not always been part of English law.

In 1984 a law was passed which pointed this presumption in the opposite direction.

Section 69 of the Police and Criminal Evidence Act 1984 provided:

This provision pointed the presumption in the other direction: it was for the prosecution to show that the computer was operating correctly, and not for the defendant to show that computer was not operating correctly.

This section 69 replaced the old common law position where, as stated above, in the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time.

Had section 69 still been part of the law when the Post Office brought its prosecutions of post-masters and post-mistresses then the course of those cases may well have been different.

Section 69, however, was repealed in 1999:

The effect of this repeal was that the old common law presumption returned, meaning that is was again for the defendant to show that a computer was not operating correctly, rather than for the prosecutor to show that the computer was operating correctly.

How this repeal came about, and whether the reasons for that repeal were sound, will be the subject of the next post in this series.

Sources

Considerable assistance for this series of posts has come from the following articles:

The Law Commission presumption concerning the dependability of computer evidence (2020)

Recommendations for the probity of computer evidence (2021)

The legal rule that computers are presumed to be operating correctly – unforeseen and unjust consequences (2022)

COMING UP

I have been working on two longer posts, which should be up in the next few days.

One is on the Post Office miscarriage of justice: in particular, the legal rule that computers are presumed to be operating correctly.

The other is on the case of Roberts v Hopwood, where it would seem the House of Lords held it was unlawful for a council to pay its workers equally.

Whatever happened to ‘the best-governed city in the world’? – some footnotes to the article at Prospect on the Birmingham city insolvency

9th September 2023

Over at Prospect magazine I have written an article headlined Whatever happened to ‘the best-governed city in the world’?.

Please do click and read it.

The rest of this post below provides some footnotes to the article and further thoughts about the subject.

The title of the article, of course, derives in part from the Alan Moore comic.

The other part of the title, however, is derived from one of the various quotations and sayings that you come across if you happen to come from or live in Birmingham. Others are “city of a thousand trades” and “more canals than Venice”.

But “the best-governed city in the world” seemed a good starting-point for this piece.

I knew it was from an American journalist about late Victorian Birmingham, but off-the-top-of-my-head I did not know more than that.

So I thought it may be interesting to track down the original quotation: any further information and context may at least add colour to a piece about local government finance and public procurement, which are not easy things to write about in an accessible way.

Pretty soon I got a year for the article which had the quotation – 1890 – the name of the journalist – Julian Ralph – and the name of the magazine – Harper’s.

Finding it was Harper’s magazine was amusing for this is the glossy magazine still published today:

And indeed the 1890 article about Birmingham municipal glory is still available on Harper’s website, but only to subscribers:

I am not, however, a subscriber to Harper’s – and it seemed disproportionate to take out a subscription just to obtain the piece, as I suspected there would not be many other articles about Birmingham.

So I wondered if the article was available elsewhere.

(The issue of copyright then crossed my mind, but it seemed to me that an 1890 article by a writer who died in 1903 was likely to be in the public domain.)

And eventually – Bingo! – I found an online copy of the publication:

And there on the contents page was the article and it actually had the quote as its title:

(Isn’t the Birmingham – see “Best-Governed City,” etc a lovely detail.)

For some reason I expected it to be a short piece, but the actual article was some twelve pages long with double columns.

So I started reading:

And on the last page of the article, and in the last paragraph, was this discussion of debt and the treatment of workers (which you should read so as to make sense of the rest of this post):

Any researcher will tell you of those moments when they are visited by the goddess Serendipity.

Not only had I found some colour for my Prospect piece, I had actually found a detailed point of comparison and contrast for a piece about Birmingham’s current predicament.

And, significantly, the 1890 article about “the best-governed city in the world” averred that the city council prowess was not because it avoided debt – indeed, the city council embraced immense debt, at levels almost unimaginable at current prices.

It was about how those Victorian councillors managed and resourced that debt, as serious people of business engaged in grand projects.

More of the Prospect piece then clicked in to place.

Switching to the here-and-now, a close reading of the “section 114 notice”, the legislation, the relevant legal cases (for example this Supreme Court decision) and the detailed reportage at the Register and elsewhere, meant that various knee-jerk things to blame dissolved.

Labour! Conservative! – well, the key employment claim was commenced when the council was under a Conservative-led coalition, and then a Labour majority. And IT project disasters care little for party affiliation.

Resources! tax! – the IT project disaster looks as if it would have also swallowed double the budget. More public money would have just gone straight through to the contractors and consultants.

(Money In, Money Out is as much a feature of bad IT procurement as Garbage in, Garbage Out.)

The problem with both the matters that have brought down Birmingham is governance.

The employment case was litigated and litigated, but the ongoing exposure appears not to have been properly managed. And sometimes litigants lose.

The IT procurement ended up as an exercise in constant changes to the software to match working practices, rather than the reverse. And any public sector procurement of bespoke developed software, as opposed to commercial-off-the-shelf software, will always tend to go badly.

The problem was glaring: neither exercise in managing risk and exposure was sensibly managed.

Compare and contrast this with the various endeavours mentioned in the 1890 article: the acquisition of gas and water undertakings, and the improvement scheme that changed the face of a Victorian city. These were also enterprises which could have gone wrong, very wrong.

But read again that last paragraph from Julian Ralph:

You will see the seriousness in how the risks and exposures are managed.

Of course, the Victorian councillors were deft self-publicists – and the leading Birmingham politician of the age, Joseph Chamberlain, can only be matched by Benjamin Disraeli in how his public image was manufactured and exploited.

Joseph Chamberlain even oversaw a memorial put up to himself, while he was still a relatively young politician and businessman.

And the 1890 article was the glossy magazine puff-piece of its time.

But.

Even realising the talent for rampant self-publicity of the Victorian politicians, the acquisition of the gas and water undertakings, and the slum clearances redevelopment, were considerable achievements for what was a growing and unfashionable urban sprawl.

(Indeed, until the year before the 1890 article, Birmingham was not even technically a city – the charter dates only from 1889.)

Whatever the (sometimes understated) faults of the municipal corporations of the time, local government was taken seriously – by voters, by the councillors, by the polity generally. Corporations had great powers, and they often used those powers sensibly, if ambitiously.

A close look at current day problems of Birmingham city council also points to it not really being just about Birmingham at all.

Unequal pay will have been a problem for many councils, and poor IT procurement does not only have a Brummie accent.

The predicament of Birmingham is that two major exposures came together at once.

(Though, as the city has long been a centre for transport routes, from the canals to Spaghetti Junction, being the venue for such a confluence does seem apt.)

Many councils are probably a few steps away from a section 114 notice – under all political parties and none. Birmingham, which we are often told is the largest local authority in Europe, is just a striking illustration of a wider problem.

In part, the problems is about resources and ideology – and under-resourced councils and ideological commitments will often make things worse.

But section 114 notices – the emergency brake of local government finance – are also perhaps a function of poor management over time.

The overall problem is perhaps a lack of seriousness: in how we as a polity now treat local government, in how central government and parliament treats local government, and in how councils themselves manage risk and exposure.

Finally, a shout-out to Prospect to being able to use this glorious 1886 depiction of Birmingham as the picture for the piece – complete with the Chamberlain monument in the foreground:

This print was up on the wall of an office in which I once worked as a temp and staring it probably was the start of my fascination with the (actual) history of my own city.

And if you look carefully at this 1886 print, you will see the dirty industrial smoke is blowing away from the nice civic architecture. As said above: the Victorians were deft self-publicists.

But if they took themselves too seriously, they also took local government seriously. And the latter is the lesson they give to us today.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

One year on from one thing, sixteen months on from another thing…

8th September 2023

On this anniversary of Elizabeth II’s death, we are still in the legislative session commenced with the Queen’s Speech of May 2022 – one monarch and two prime ministers (and several cabinet ministers) ago.

This, by itself, illustrates the drift of the current government. Neither Truss nor Sunak when they commenced their premierships signalled a new legislative programme. Instead they carried on with what was, in any case, primarily a gimmicky pick-and-mix miscellany of poorly conceived legislative proposals.

And so we are are still, in one sense, in the age of Johnson. And he is now not even in parliament, let alone the head of a government pushing through his last legislative package.

The knock-on effect of this is, as my Substack has previously averred, that the government is running out of time before the next election to pass legislation – especially anything fundamental or controversial. Many will think this a good thing, but it is not the sign of a government with direction or drive.

We are one year on from one thing, sixteen months on from another thing, and still perhaps a year away from that one thing, a general election, that can bring about any meaningful change.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

What is a section 114 Notice?

7th September 2023

Birmingham has more canals then Venice and more hills than Rome – you will be told – and it has the largest local authority in Europe and it is the only city in the United Kingdom, other than London, with a population of over a million.

And the city council now also has a section 114 notice – you can click here to read it.

The notice is under section 114(3) of the Local Government Finance Act 1988 (coincidentally the legislation that introduced the poll tax).

The provision is simple:

“The chief finance officer of a relevant authority shall make a report under this section if it appears to him that the expenditure of the authority incurred (including expenditure it proposes to incur) in a financial year is likely to exceed the resources (including sums borrowed) available to it to meet that expenditure.”

The report is worth reading in full as a snapshot of a council in trouble and as an account of how it got into that trouble.

I am a writing a longer piece about this, but I thought this would be a useful post.

Constitutionalism vs constitutionalism – how liberal constitutionalists sometimes misunderstand illiberal constitutionalism

24th August 2023

One conceit of many liberal constitutionalists is that they have a monopoly on constitutionalism: that is the notion that constitutional rights and structures are fundamental to political thought and action.

An indication of this conceit is the immediate – indeed automatic – response of British liberals to certain political mishaps and transgressions: this shows the need for a written constitution.

This is said, with force and sincerity, regardless of the brute fact that written (that is, codified) constitutions can be very illiberal things indeed.

A codified constitution can entrench rather than limit executive power, and it can limit rather than entrench the ability of other organs of the state to check and balance executive power.

From a liberal perspective, the true test of a written constitution for the United Kingdom is whether it would be more liberal than our current uncodified constitutional arrangements.

There is no reason to believe it would be, especially if the government of the day – with its army of ambitious officials and clever legal advisers – has anything to do with its drafting and implementation.

Our current constitutional arrangements have obliged the executive to use legislation for the Article 50 notification and prohibited the government from using a prorogation for wrongful purposes; and our current constitutional arrangements also have led to two prime ministers losing power, notwithstanding the large majority of the incoming government in 2019.

Against these highlights, however, is the steady push of the executive to gain more and more discretionary power, especially in respect of interfering with the rights of individuals. So the current arrangements should not an excuse of complacency, for our constitution has many illiberal features too.

But the way forward to making our constitution more liberal is not to assume that illiberals do not care about constitutions; it is to realise and accept that they too care about constitutional powers, but not in the same way as liberals.

In a more vivid form, this can be seen in the United States where the Trumpites and others frame their objections to their government in terms of their constitutional rights, especially to bear arms and free expression, and states’ rights.

Even the events of 6 January were based on an elaborate ruse of gaming the constitutional role of Vice President (as president of the senate) and exploiting that role’s responsibilities in respect of electoral college votes.

This may not be constitutionalism which is to your liberal tastes – and indeed many conservative constitutionalists were opposed to this ploy.

But it is still a form of constitutionalism – in that certain constitutional provisions were being (mis)used to legitimise and achieve certain political ends.

What Trump and his conspirators wanted to do was to keep power by (mis)using constitutional provisions.

And, of course, he would not have been the first authoritarian populist to seize and retain power through constitutional arrangements, rather than in spite of them.

It is prudent in public matters to try to understand political opponents on their own terms, rather than to caricature them and their motives.

Liberal constitutionalists need to realise that their opponents also care about constitutional arrangements and constitutional legitimacy, but do so in a very different way and within a very different narrative.

The battle is not about constitutionalism against anti-constitutionalism.

It is between two contrasting and irreconcilable views of constitutions and what can be done with them.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.