A short post about some upcoming topics on this blog

3rd May 2021

Today – a bank holiday – has been taken up with dealing with an (ahem) irksome IT problem which, I am happy to now say, has been resolved.

The consequence of that problem is that it is now too late to post on the topic I was intending to post on today.

But instead of not posting at all (and I do like posting once a day if I can), I thought regular readers would like to know what is coming up – and also what I am seeking to move away from blogging about.

Upcoming are:

 – a couple of posts on the legal side of the ‘culture wars’ – premised on the basis of a previous post Suppose the government wanted a culture war and nobody came? – approaching relevant politic-cultural topics not as a combatant but as a commentator

 – a series of posts on the gaps in accountability and transparency in the conduct of the state of the United Kingdom – in respect of the Ombudsman system, the corononial system and public procurement;

 – more posts on issues relating to Black Lives Matter – including a follow-up to the Smiley Culture post and posts on other deaths in custody and whether those infamous ‘lessons’ are ever ‘learned’; and

 – the completion of my series on the Begum case (here and here), which shows the extent of sheer executive power in respect of the position of the individual.

I will also, from time to time, deal with something odd in the news – like Handforth parish council or Colin the Caterpillar – for no better reason than I think it would be amusing and instructive to look at it from a law and policy perspective.

And, of course, I will deal with any more earnest news developments if I can think of anything useful to say.

But.

I am beginning to think that there is little new to say about certain enduring subjects such as the (lack of) honesty of politicians and the limits of the constitution to address the (dire) state of our politics.

The subject remains crucially important – but averring that there are constitutional problems caused by political dishonesty and hyper-partisanship that need practically resolving is repetitive to write and, not doubt, to read.

Unless there is something fresh to say on the (absence of) practical accountability of the prime minister and related topics, I can only offer what I have said before as a given.

Many thanks to you for reading my blog – and an additional thanks to those of you who support it.

Why public inquiries are often an admission that the other elements of the State have failed

2nd May 2021

It is a familiar routine.

Something horrible has happened and somebody is to blame, and so the demand is made that there is a public inquiry.

There is nothing wrong with this demand.

Indeed, this blog yesterday averred that the the inquiry into the Post Office scandal should be placed on a formal basis, with powers to compel evidence.

Similarly, all sensible people want an inquiry started as soon as possible into the government’s handling of the coronavirus pandemic.

There are also many other subjects that would benefit from the focus and dedication of a public inquiry.

But.

Many public inquiries, and most demands for public inquiries, are also implicit admissions of failure.

The admission of failure is that the other elements of the state – primarily the executive, the legislature, and the judiciary – have failed in their roles.

That there has been insufficient control and transparency within the government, and/or that there has been insufficient scrutiny by or accountability to parliament, and/or a sense of general injustice lingering after attempts to litigate specific matters in the courts.

Of course, there are certain discrete issues where inquiries are appropriate and do work which could not have been done otherwise – for example, the Cullen inquiries.

But if the other elements of the state had performed their proper constitutional functions, key issues of transparency and accountability – that are the stuff of many inquiries, and of most demands for them – could be addressed more directly and immediately by elected politicians.

This, I know, is wishful thinking and no doubt the counsel of constitutional perfection – yet each demand for an inquiry is, like the ringing of a bell, often an indication of wider state failure.

Politicians are comforted and protected by this habit of thought – as they can say and nod solemnly that there should be (or may be) an inquiry whenever something goes wrong.

Lessons will be given and then learned by having an inquiry – but we will never learn the lesson that perhaps we should be catching problems at an earlier stage of the political process.

How can we shift exercises in transparency and accountability back to earlier in the political process?

To be dealt with parliamentarians, holding the executive to proper account?

There is no easy and obvious answer.

Perhaps we should have an inquiry…

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The Post Office scandal: as the problem was about non-disclosure, then logically an inquiry with powers to compel evidence is required

1st May 2021

The Post Office scandal is being described fairly as one of the most widespread miscarriages of justice in legal history.

One of the fundamental problems that led to this scandal was non-disclosure.

The managers (and presumably the lawyers) knew information about the reliability of their Horizon software but did not disclose it.

Had that information been disclosed then (depending on the timing of the disclosure) prosecutions would not have taken place, or defendants would have been found not guilty, or convictions could have been more speedily appealed.

And so, given this fundamental problem of non-disclosure, it is remarkable that the government’s response is an inquiry that cannot compel the disclosure of evidence.

Just think about it.

The government’s non-statutory inquiry has its own web page and terms of reference.

And if you read through the documents on the page, what is said is fine as far as it goes.

But it does not go far enough.

For example, one of the terms of reference is expressly in respect of obtaining information:

‘[to b]uild upon the findings of Mr Justice Fraser, by obtaining all available relevant evidence from Post Office Ltd, Fujitsu and BEIS to establish a clear account of the implementation and failings of Horizon over its lifecycle’.

Yet, as where there is blame there will be claims, the various entities mentioned will have reason to not disclose anything which could lead to civil or even criminal liability.

They will have engaged lawyers to advise them on their obligations in respect of the disclosure of information for the inquiry – and that advice would give them legal cover to refusals to share information.

And what goes for documentary evidence goes to witness evidence too, as this tweeter well observes:

What we therefore face is one problem that was caused by non-disclosure being followed by another problem caused by a different type of non-disclosure.

There is no good reason why the inquiry into the Post Office scandal does not have statutory powers to compel evidence.

And, given that non-disclosure was at the heart of the miscarriages of justice, every good reason why it should.

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How, in practice, can a prime minister be prevented from lying to the House of Commons?

30th April 2021

The relentless and casual dishonesty of the current prime minister Boris Johnson may still have political or parliamentary consequences.

But just as a thought-exercise, say, would it be a good idea to put the prime minister under oath (or affirmation) at PMQs?

Then, in theory, the prime minister’s mind would concentrate wonderfully, as he would be under some sort of punitive sanction in the event he knowingly said something false.

In this way, the position of the prime minister would be akin to a witness in a legal case, who is under pain of perjury in the event that they do not say the truth.

It is the sort of notion that can appeal to the mind’s eye.

*

But.

It would not work easily in practice.

For example: who would determine whether the prime minister is saying something untrue or not?

If the house of commons as a whole, they can do this by motion already – although this will not happen in practice to a prime minister with an overall majority.

And, if not the house of commons as whole, who?

The speaker? A committee? An official?

How would they go about assessing whether there had been a falsehood or not?

*

And then there is the deeper – almost categorical – problem.

The prime minister is not providing evidence in answer to parliamentary questions.

This by itself differentiates the prime minister from a witness in legal proceedings.

A prime minster may be asked to give an account of the government’s position – an explanation, rather than a list of facts.

Indeed, any statements of fact are merely incidental to this giving of an account.

A prime minister can thereby provide a full answer to a parliamentary question and not state any fact at all.

Accordingly, the witness-perjury model is not an exact fit.

*

But how do you stop a prime minister – or any other minister – from stating untruths at the dispatch box?

Thee polite constitutional fiction is that honorable and right honorable members do not lie in parliament – and that is why they cannot (other than by a parliamentary motion) be accused of lying. 

But this ‘good chaps’ theory is being flouted – brazenly so.

We therefor have a problem without an easy solution.

Putting the prime minister under oath may not work – but what would?

How can – in practice – there be a check and balance to a prime minister lying in the commons – if mere conventions do not matter any more?

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Some words of comfort to regular readers

29th April 2021

Regular readers of this blog will be aware that things are not well with the constitution of the United Kingdom, or with law and policy generally.

Regular readers will be braced for bad news – even without this blog’s frequent injunction of ‘brace brace’.

But.

There are, believe it or not, some grounds for optimism.

The grand Cummings-Johnson project of pushing prime ministerial power as far as to could go is close to collapsing.

Cummings has gone, and Johnson has few remaining internal allies in government.

Indeed, Johnson seems quite isolated even within the government.

Other parts of the constitution are still twitching with indications of life.

For example: the house of lords, as with the Overseas Operations Bill, has ensured that certain proposed unpleasant provisions will not be enacted – resulting in a minister departing office.

And although few will have high hopes of various inquiries and investigations into what has and has not happened in Downing Street, at least those inquiries are happening and that they are, to a certain extent, beyond ministerial control.

The illiberal 2016 project does not – necessarily – have easy purchase in 2021.

Constitutionalism may still yet reassert itself.

To mimic Johnson – constitutionalists need not be doomsters and gloomsters.

One day – perhaps soon – the constitution of the United Kingdom will still be there, and Boris Johnson will not be.

Even if it is a close run thing.

 

 

 

Genuine accountability, mock accountability, and the lies of Boris Johnson

28th April 2021

Today’s prime minister’s questions was extraordinary.

On the two issues of the moment the prime minister Boris Johnson was relentlessly unconvincing and evasive.

In respect of the alleged ‘dead pile high’ quote, it is plausible and – according to the media – well-sourced.

In respect of who paid for the Downing Street decorations, the verbal dodges to the simple query of who initially paid for an invoice were painful to watch.

But.

Not many will care.

A significant number of the population will, no doubt, sympathise with the sentiment which the prime minister expressed about lockdown, and more than a few will agree with the actual wording.

Similarly, the question of the refurbishment invoice will not matter to those who do not mind who paid as long as it was not the taxpayer.

Perhaps there will be hard evidence – either compelling on-the-record testimony or even an audio recording – to prove Johnson as a liar.

Yet even then the only surprise would be that he has been so starkly caught out.

The sad, inescapable truth is that Johnson conducts himself as if he is free from accountability.

And the reason he is able to do this is simple: it is because he can.

*

Let us look at the available mechanisms of accountability.

Johnson and his government will avoid, as long as possible, any formal inquiry as to their conduct in respect of the coronavirus pandemic.

The prospect of an electoral commission investigation is difficult to get excited about, given their impotence in respect of the lack of compliance during the referendum.

And Johnson just freely lies to parliament.

The examples – all of which are documented and verifiable – just accumulate.

Almost nobody cares.

We have more internal ‘inquiries’ – which may or may not report, or even be heard from again.

Few people keep track.

And as Fintan O’Toole observes, Johnson is not now even bothering to lie in prose:

‘It’s not when Boris Johnson is lying that you have to have to worry. If he’s lying, that just means he’s still breathing. No, the real danger sign is the gibbering. It’s what he does when he can’t be bothered to think up a lie.’

*

Against this pervasive mendacity, those organs of the state that are able to check and balance the executive are being undermined or removed: the independent civil service, the diplomatic corps, the independent judiciary, and so on.

All because – at last – the United Kingdom now has a prime minister willing – and shameless enough – to exploit to the full the (ahem) opportunities that the prime minister has with a parliamentary majority.

Eventually, of course, Johnson’s hubris will meet nemesis – just as he himself eventually came to meet the costs of the Downing Street refurbishment.

And here we are lucky – for if we had a political leader who was as serious in retaining power as, say, Vladimir Putin, we would have few constraints to look to for checking and balancing power.

Johnson is what we get, however, when politicians stop believing (or affecting to believe in) the ‘good chaps’ theory of the constitution.

Tuttery is insufficient – and the tutting could be three times as loud, and it would still make no difference.

*

There are indications that political and media supporters of Johnson are moving against him.

If so, there could be a mild political crisis and that this may be enough to dislodge Johnson from office.

But this would not be through any application of any constitutional check or the operation of any constitutional balance.

For all of Johnson’s sheer and endless casual dishonesty, there has been nothing the constitution could do to stop him.

Even if he was proven to have lied to parliament, that would mean nothing politically if he still had support of the majority of members of parliament.

*

And on a final note.

Usually at this point of this sort of exposition, someone will aver that all this shows the need for a written (that is, codified) constitution.

The universal panacea for every political ill.

But.

A written constitution is as likely to entrench executive power than to limit it.

The problem is not the type of constitution.

The problem is instead a related one: the failure of constituionalism.

And while Johnson’s brazen disregard for constitutional norms is tolerated, there is no point changing the rules of the game, for he would disregard those rules too.

The problem is a political one: and the solution is thereby to show that this conduct means he loses power.

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Why do prime ministers so often forget Hubris meets Nemesis? And why we should be glad that they do forget.

27th April 2021

The current prime minister Boris Johnson assures us that the public will not be interested in some current scandal.

He may well be right.

Johnson, like almost all those who become prime minister, is an exceptional politician – and one does not climb to the top of the greasy pole if one slips easily.

But – again like many former prime ministers – this political durability and steadfastness is converting into a sense of invincibility and infallibility.

Because a senior politician can survive some setbacks, they come to believe that they will survive all setbacks – that they are immune.

Margaret Thatcher in about 1988 was like this – introducing the poll tax to chants of ‘ten more years’ from delegates at party conference. 

Tony Blair also was like this about the time of the Iraq invasion.

But it never lasts.

Even prime ministers such as Thatcher and Blair, both of whom won three general elections, were unwillingly replaced.

Why is there always this hubris before nemesis?

Why is there this apparent sense that it will turn out different this time?

Part of the answer, of course, lies in politics and personalities – and thereby it is a quality of those who gain and retain political power.

But part of it must also be – at least in the United Kingdom – how insulated a prime minister is from actual accountability.

For a prime minister with a sizeable majority has few restraints on their political freedom of movement.

They can personally change policy and impose it on cabinet; they can force through almost any legislation; they can conduct foreign policy; and they can appoint and sack at will.

Perhaps we should not be surprised that some prime ministers go mad with power, but that they do not go madder.

But such hubris will always meet its nemesis – and what practically brings a prime minister down will often be their arrogance of being untouchable.

And so perhaps the politicians to fear most are not the hubristic ones – for they are merely creating the means of their own political destruction – but the ones that are acutely aware of the fragile nature of power and never forget it.

For they are the scary ones.

Why the Post Office case will not go away – and the wider implications of the case

26th April 2021

Few appeal cases keep on being news a few days after the judgment has been handed down.

The parties, of course, will keep an interest as they decide what, if anything, to do next; lawyers will consider any legal or procedural point of wide import; specialists and experts will take due notice of any significant development.

But general news value of an appeal decision diminishes rapidly, and soon it will be as old news as a football result.

But the Post Office appeal case has been different.

If anything, many people – this blogger included – are taking more of an interest in what happened.

In part this is because of the detailed judgments – and so some relentless investigative journalism.

The more one looks at the case the more worrying the case becomes.

All sorts of professionals – not just the senior managers – appear to have been caught up in the attempt to oppose the exposure of what happened.

And as the eminent blogger on law and legal ethics Richard Moorhead asks over at his blog: where were the lawyers?

Reading carefully this detailed Private Eye piece on the scandal, there are many moments where anyone with an interest in litigation will gasp. 

The easy way of addressing the question of what were the lawyers doing is to aver that lawyers are not decision-makers, they only advise and so on.

But that old stand-by of an excuse does not quite work with issues, such as disclosure of documents and duties to the court, where the decision-making is done by lawyers rather than clients.

Something very wrong happened, and for a long period, and because of the decisions made of many people.

And the wider question becomes: where else are such commercial-legal scandals and cover-ups where there has not been a success in bringing it to light?

Perhaps not ones where there have been a mass of prosecutions, but where there has been co-ordinated attempts to prevent transparency, scrutiny and accountability.

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How proper funding and resourcing means fewer miscarriages of justice

25th April 2021

After every miscarriage of justice there is the question of how the wrong was possibly allowed to happen.

And often the miscarriage comes down to the evidence before the court.

In essence: the court is presented with evidence that [x] is the case, and unless that evidence can be undermined then the court will be satisfied that there is guilt beyond reasonable doubt.

The evidence can come from police officers. or from an ’eminent’ expert witness, or (as with the Horizon scandal) an IT system.

(See my Horizon posts here and here.)

*

In a criminal case a court is presented with substantive (-looking) evidence on one side of the scale and nothing – other than perhaps bare denials – on the other side.

And so the scales tip to one side.

To dislodge such (on the face of it) compelling evidence is a difficult task.

To an extent the situation is alleviated by the obligation of the prosecution to disclose relevant evidence, and not just the evidence on which they are relying on.

To an extent the situation is also alleviated by a prosecutor assessing the soundness of the evidence before bringing any prosecution.

To an extent proper preparation for trial from everyone involved – judge, prosecution, defence – should be a safeguard.

And the main safeguard, of course, is (or should be) the forensic process itself.

Evidence – especially evidence which comes from supposedly authoritative sources – should be relentlessly tested for its cogency.

There should not be mere nodding-along in deference – whether to a police officer, a ‘respected paediatrician’ or a ‘robust’ computer system.

*

But.

Disclosure exercises are sometimes not easy – or cheap.

A properly resourced prosecution authority is not cheap.

Proper case preparation is not cheap.

And skilled in-court lawyering and cross-examination is not easy – or cheap.

For justice to be served, however, requires all of this is done well – which requires funding and other resources.

Else the court will be prone to placing the wrong weight on evidence before it.

Or as techies put it: Garbage In, Garbage Out.

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Further thoughts on the Post Office Horizon case

24th April 2021

Following yesterday’s important and immense criminal appeal judgment on the Post Office Horizon case (post here), I have had a look at the preceding civil judgments.

(The civil cases were when those affected sued the Post Office – the criminal appeals were challenges to the criminal conviction in prosecutions brought by the Post Office – the distinction explains why there have been two channels of litigation in this scandal.)

The first – favourable – impression is that the judge who dealt with the civil cases did a magnificent job of judging, both in terms of case management and of the substance of the case.

The key 2019 judgment is here – and it some 155 pages and 1024 paragraphs.

It is an outstanding and forensic piece of work, by a (rare) judge at ease with both technology and the law.

Paragraph 929 is a judicial classic.

The judge is a credit to the judiciary.

*

But.

That civil judgment is from late 2019.

The criminal convictions were quashed yesterday.

And the wrongful convictions date back to 2003.

This means there has been a wait of, in some case, nearly twenty years for justice.

However commendable the 2019 civil judgment and the 2021 criminal appeal judgment, there is little or no room for legal self-congratulation at these delays.

Part of the delay can be explained, of course, by the Post Office seeking to contest the cases as long as possible, defending their ‘robust’ system.

Another part of the delay can be explained by the internal Post Office decisions to, in effect, cover up or ignore what happened.

But whatever fingers can be pointed elsewhere, this is a stark example of the failure of the criminal justice system – and it is a systemic failure given how many were falsely convicted.

And so a close look is needed at what, if anything, could be done to stop such injustices again – especially (as is one of my bugbears) the right and power of certain self-interested entities to bring private prosecutions.

*

One or two people have complained about the the legal fees in this case.

It would appear that the lawyers for those unfairly accused and convicted had an immense legal job in taking taking on and defeating a well-resourced Post Office insisting that their system was ‘robust’.

To dismantle such a case so that one could even have the material and evidence before the court that would enable Mr Justice Fraser to be able to make his judgment was an extraordinary task.

That the lawyers who did this successfully were remunerated should not be controversial.

And had the Post Office not contested the cases – and, as the court averred, insisted that the world was flat – then the costs would have been substantially less.

Sometimes lawyers can be fairly blamed for costs – but not, it would seem, in this case.

*

There should also be a shout out to the investigative journalist Nick Wallis, who has both covered and uncovered a good deal of the scandal – and you can support his work and buy his book here.

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