The office of the prime minister was not invented in one sudden moment.
The term ‘prime minister’ came to be used generally over time to describe the main minster of the crown, and who was answerable to parliament.
For a long time, the office of prime minister was invisible to our constitutional law.
The first time it was used in a formal instrument was, we are told, when Benjamin Disraeli signed the treaty of Berlin in 1878.
Even in the twentieth century it hardly left a trace on the statute book.
And this gives us an insight in to the strengths and weaknesses of the position.
In constitutional theory, the power of a prime minister derives – ahem, primarily – from two sources.
First, the prime minister has powers derived from the royal prerogative – the fiction being that the prime minister exercises those powers on behalf of the crown.
Second, the prime minister has powers derived from commanding a majority in the house of commons – and thereby control over finance legislation.
The prime minister’s power rests thereby on two constitutional stools.
What the prime minister does not have – at least not formally – is his or her own explicit constitutional centre of gravity.
Almost everything a prime minister can and cannot do ultimately comes from, in theory, either the crown or parliament.
This, in turn, means that the office is difficult to ‘reform’ – for as there are almost no legal instruments that set out the powers of the prime minister, there is no text to amend or replace.
It would be like trying to net a constitutional ghost.
It also means that the office can be as powerful and as weak as personalties and circumstances allow – you would not be able to tell just from constitutional law alone why certain prime ministers are strong or otherwise, and how certain prime ministers lose power.
For explanations for why, for example, Margaret Thatcher and Tony Blair both left office despite winning three general elections each you will have to look at books about politics and not about constitutional law.
And so what we are celebrating is not so much three hundred years of an office but a lack of a defined office, but one at the centre of practical political power.
***
Thank you for reading this post on this daily law and policy blog.
If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.
****
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Every so often with Boris Johnson as prime minister there will be, in effect, the excuse of ‘the king’s evil counsellors’.
This useful excuse means that the prime minister is not really culpable for his decisions, but somebody else on whom he relied.
For example: it may be in the form of ‘Boris takes control‘ news report – which, of course, suggests that those who hitherto had responsibility did so without the prime minister’s support or direction.
Or: it may be in the form of the Prime Minister ‘distancing himself’ from a report or a decision issued by Downing Street.
In any case it is a form of plausible deniability – that is is one of the prime minister’s advisors or ministers to blame, and not the prime minister.
Johnson is especially adept at this evasion.
It means that somebody else is always to blame – and he can shake his head and affect to be innocent – he was merely advised badly.
That his ‘evil counsellors’ were at fault, but not him.
There is controversy in the news today about central government communications
In particular, there is – correct – criticism that government press offices are generally unhelpful to those from the outside making the enquiries and too motivated by serving the political interests of the ministers of the day.
This, sadly, is nothing new – though it does appear to be getting worse.
This is, of course, a subjective and personal perspective – other commentators and journalists may have less frustrating – indeed happier – experiences.
But if the current criticisms – as affirmed by my own experience – are valid then the most likely explanation is akin to the view adopted by that police officer the other day.
You will recall the officer who insisted that the police were crown servants as distinct from public servants.
Press offices, ditto.
(Also freedom of information offices – but that is for another post.)
Government press officers seem to see their role as actively not providing information to the public and the press, but instead seeking to withhold information and misdirect media attention.
Unless a journalist has an already good relationship with a press officer, there is little or no point asking for anything useful from a press office.
This is why, for example, I prefer to work with public domain and open source information – and to spot connections and identify discrepancies.
Harder, slower work – but worthwhile.
This means I usually only go to government press offices in two situations.
First, if there is genuinely no other way I can obtain the information from public domain or open source material.
Second, if I need some specific thing verified (or rebutted) before publication – where I have worked that thing out by other means.
This approach means that there is little scope for a government press office to shape my writing and commentary – only to influence it, if at all, at the margins.
My approach here is not unique – and it is because government press offices are so adept at being (ahem) gatekeepers that they sometimes pay the price by not being involved in reports and commentary, other than perhaps to provide a statement or not.
Tight media management can only achieve so much.
This is not the only way government press officers are being avoided – as ministers and ministerial special advisers build up their own direct trusted relationships with political journalists.
And so government press offices – although they seem to be expanding in size – are also being squeezed in substance.
Employing more and more people to say less and less.
Government comms disappearing into a hole of its own creation.
And in the meantime, the notion of a government press office being there to serve and inform the public becomes a smaller and smaller speck in the law and policy sky.
***
Thank you for reading this post on this daily law and policy blog.
If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.
****
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Ten years ago this month the singer David Emmanuel – known as Smiley Culture – died under arrest during a police raid.
The cause of death was a knife wound – which the police said was self-inflcited.
Ten years ago I blogged about this extraordinary death – and so this post is a follow-on so as to see what happened (and did not happen) next.
*
Smiley Culture was part of the soundtrack of those of us brought up in the 1980s.
Have a click and listen and watch.
The sneering, aggressive vocal characterisation of the officer – ‘Shut your bloody mouth. We ask. You answer’ – felt spot on for those in communities which dealt with the police.
Police Officer especially caught a certain mood about the police’s attitude.
*
Here is the singer posing outside a south London police station on the cover of the single:
*
The news of the circumstances of the death of Smiley Culture seemed – literally – incredible.
That someone could stab themselves fatally in the chest in the presence of police officers seemed surreal – like something akin to those lines in the Blackadder episode Dish and Dishonesty.
But this – horrifically – was real, not a fiction.
*
The name of Smiley Culture is now recalled as one of a long list of name of black people who have died in police custody or in similar situations.
So what happened with his case?
Putting events together now, the main consequence of the death was a coroner’s inquest in June-July 2013.
After a two-week hearing, the jury returned a majority verdict that the cause of death was indeed suicide.
(A majority verdict, of course, means that the jury could not come to an unanimous verdict, which in turn means that at least one juror had doubt that it was a suicide.)
According to a BBC report, the inquest heard medical evidence that the fatal wound could have been self-inflicted, if the right spot was chosen:
‘Dr Nathaniel Cary, who carried out a second post-mortem examination on Mr Emmanuel’s body, said told the inquest it was possible the fatal stab wound was, as described, a self-inflicted injury.
‘But he said that on pathological grounds alone there was nothing to determine that this was the case, although it was fair to say the site chosen may be used in self-infliction.’
The majority of the jurors accepted this as the explanation.
As counter-intuitive as this verdict may seem, it must be remembered that those jurors sat through two weeks of evidence – which was cross-examined on behalf of the deceased’s family.
But another person who sat through that hearing – the daughter of Smiley Culture – was not satisfied.
‘After listening to over two weeks of evidence and having had the opportunity to test the accounts of the officers, I feel no closer to the truth than I did before.
‘I have approached this inquest with an open mind hoping to hear for myself what happened on the day of my dad’s death.
‘Despite the jury’s verdict, the inconsistencies in the evidence have only served to raise serious concerns on my part about what really happened on the morning of March 15 2011.’
*
That a person in a room drinking tea with a police officer should suddenly get up, produce a large kitchen knife and plunge it in his own chest so as to kill themselves is, even accepting the jury’s verdict, an extreme fact situation.
Even if it were suicide, there are questions to be asked about how it happened, and answers to be given in the public interest.
‘Despite the suicide verdict, the jury did find that the way in which Mr Emmanuel was supervised following his arrest materially contributed to his death. In particular, the fact that a single officer was left to supervise Mr Emmanuel while also completing paperwork was felt to be inappropriate.
‘The inquest has also highlighted serious failings in the Independent Police Complaints Commission’s investigation, including a failure to attend the scene until some four hours after the event, a failure to secure all relevant evidence, and a failure to critically analyse opinions expressed by the expert witnesses.
‘Following the verdict, the Coroner, Mr Richard Travers, said that he would write to the Metropolitan Police Service, highlighting failures that contributed towards the death, making recommendations for changes aimed at preventing similar tragedies in future.’
*
The (then) Independent Police Complaints Commission issued the following press release after the inquest verdict (emphasis added):
‘Following today’s conclusion of the inquest into the death of David Emmanuel, also known as Smiley Culture, IPCC Commissioner Mike Franklin said:
‘David Emmanuel’s death caused huge shock, anger and disbelief in the community and I am aware that many people, most importantly Mr Emmanuel’s family, have waited over two years for the evidence to be heard at an inquest.
‘The ongoing dynamic assessments made by officers on the 15 March 2011 were left wanting. Four experienced officers felt it appropriate to detain a suspect in the kitchen, potentially the most dangerous room in the house and afforded him a level of freedom not normally associated with an operation of this kind.
‘The IPCC has made a series of recommendations to the Metropolitan Police following this investigation presenting them with areas that should be reviewed and changed in light of the findings. These include recommendations on dynamic risk assessments, the sharing of information and use of officer personal safety equipment.
‘The IPCC made two national recommendations following this investigation. The first is that officers should always detain people in the safest part of the house. Therefore kitchens must generally be avoided at all times. The second national recommendation focused on officer safety equipment and that all officers and staff attending search operations should carry with them the appropriate personal safety equipment.
‘While the IPCC highlighted these areas of learning for the MPS, the officers’ actions did not meet the threshold for misconduct under the Police (conduct) Regulations 2008 and no disciplinary action has been recommended.
‘I hope that this inquest has provided Mr Emmanuel’s family with some of the answers they and the community have so patiently waited for. This has been a long process for all the parties involved and I would like to thank them for their patience.
‘Notes to editors
‘Mr Emmanuel died on 15 March 2011 of a single stab wound through the heart at his home on Hillbury Road in Warlingham, Surrey. Four officers from the Metropolitan Police Service (MPS) were at the house at the time, carrying out a search of the property.
‘After careful consideration and in consultation with lawyers from both the IPCC and the Crown Prosecution Service (CPS), Commissioner Mike Franklin, took the decision not to formally refer the case to the CPS as the investigation found no evidence that a criminal offence may have been committed.
‘Consideration was also given as to whether the actions of individual officers met the threshold for misconduct under the Police (conduct) Regulations 2008. The investigation found there were no individual failings which, for the purposes of the Regulations, amounted to misconduct.’
*
So the conduct of the police was ‘found wanting’, somebody died under arrest, but this was an opportunity for ‘learning’ rather than any formal proceedings.
The coroner, in turn, also made recommendations.
Thanks to a tweeter, we have what appears to have a formal record of the recommendations:
Presumably this is report 208 on p39 at https://t.co/2zixUC50Q4 ? If the inquest had been 4 weeks later we could read the letter and responses.
No doubt in each of those situations there are special facts – but it is marked that the police rarely face any proceedings, let alone criminal charges for any of these deaths.
And it may well be that the close scrutiny of each case could dispel any suspicion that something wrong happened every time.
But the accumulation of deaths as set against the absence of successful prosecutions seems to be a mismatch.
Given the facts of the death of Smiley Culture, as determined by a majority of a jury, it may contested that his death is not as glaring example of this apparent trend of injustices as many others.
But like one or two of the others that have died while in the custody (or ‘care’) of the police, he happened to be more famous than the rest, and so his is one of the names that will be cited.
And even the IPCC found the conduct of the police at the time of his death to be ‘wanting’ – with both the IPCC and the coroner separately making recommendations about how such searches are conducted in future.
So even if one accepts the coroner’s inquest – and again the jury heard the relevant evidence cross-examined and a majority of those jurors were convinced it was suicide – the death followed carelessness by the police.
I am still seeking to find out if those recommendations were formally accepted by the police and the home office – though I have been told by police sources that the training for such searches now includes the need for risk assessments that would cover what happened in the death of Smiley Culture.
I will post here again on this subject when I have further information about what happened with the recommendations of the coroner and the IPCC.
It is important to follow these things through, even ten years later – especially as black people continue to die in police custody, and there are never any formal proceedings.
**
***
Thank you for reading this post on this daily law and policy blog.
If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.
****
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
This is just a quick post to draw together a couple of points in my law and policy commentary that appear to some people to be contradictory.
On one hand, this blog and my commentary elsewhere relentlessly point out the constitutional failings and trespasses of this government – especially the propensity of current ministers to evade or remove checks and balances.
On the other hand, I am not a fan of a codified constitution (popularly though misleadingly called a ‘written constitution’) and can indeed be quite dismissive of those who contend it is a panacea for our political ills.
How can I be one and not the other?
Usually my first response is to aver that any written constitution would be more likely than not to entrench executive power – especially one which was introduced while the government had a high parliamentary majority.
But there is a second reason which I should perhaps emphasise more – especially when the knee-jerk accusation is that any legal commentator is legalistic – and that is that there needs to be a change in political culture.
‘Constitutionalism’ means taking constitutional rules and principles seriously in any given political circumstance – that things should be done or not done in a certain way because constitutional rules and principles matter in and of themselves.
One can have constitutionalism within a political system without a codified constitution – indeed the lack of codification arguable makes the following of basic constitutional precepts more important in political action.
And in the United Kingdom, there have been constitutionalist politicians in all parties.
The merit of constitutionalism is an acceptance and appreciation that there will be tensions between the elements of the state and that there are certain ways in which these tensions can and should be addressed before they harden into conflicts.
Without the political culture of constitutionalism, however, there is no point in having grand words in a codified constitution.
In the current politics of tribalism and hyper-partisanship – especially where the government wishes to eliminate all checks and balances – what is needed more than ever is a sense of constitutional propriety.
Some may aver that constitutionalism would be a happy consequence of a codified constitution – though the recent example of President Trump in America perhaps indicates that even with codified constitution there can be rampant anti-constitutionalism.
The revival and promotion of constitutionalism, however, would require political leadership – for leading politicians to insist there are principles and rules that are distinct from the partisan self-interest.
And writing in early 2021, such a shift in political culture seems as remote as any codification.
***
Thank you for reading this post on this daily law and policy blog.
If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.
****
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Many will have Very Strong Opinions about the basic ills in the United Kingdom political system.
Some will point to individual politicians (Thatcher, Blair, Johnson, Corbyn, Farage etc) or political parties (Tories!).
Others will point to political ideas (Brexit, Remain, Centrism, neo-liberalism, ‘woke’-ism).
A minority will aver that there are structural failures – unelected head of state or upper chamber, the lack of proportional representation, and so on.
Perhaps these views are correct, but the more I write about the law and policy of the United Kingdom, the more there seems one particular fault in the conduct of public public affairs.
Accountability.
It is almost impossible – in practical terms – to hold many with executive power to account.
Of course, there is constitutional theory – such as the supposition that ministers are accountable to parliament.
But even typing or saying that feels artificial if not ridiculous.
Ministers routinely avoid saying things to parliament and, if they do, they are adept at saying untrue, or misleading, or incomplete things.
And there is no real sanction if a minister does mislead or disregard parliament.
That ministers are accountable to parliament is not so much a constitutional principle, but a lack of a principle.
It is a rhetorical cloak that hides the lack of any real accountability.
Contrast with, say, judges.
A judge has to give reasons for their decision – and those decisions must explain why they took that decision and not any other decision; the decisions of judges can be appealed or reviewed by other courts; and the law applied by a judge can be changed.
You may sneer at judges in their (daft) robes and wigs, but they are practically day-to-day accountable in at least three ways.
Ministers, in contrast, do not need to have reasons that add up for most of their decisions; they are free from having those decisions properly scrutinised by their political peers; and there is no real limit to what they can legislate if they are so minded.
And apart from the remote possibility of a legal challenge, or an eventual general election, they are safe from actual accountability.
There are various causes of this:
– the elective dictatorship of parliament, where the government also has control of the elected part of the legislature, is a primary cause;
– the lack (with a few notable exceptions) of a press that is geared to holding ministers to account rather than being a means of transmission of information from/about the government to the public;
– the hold that political parties continue to have in the recruitment and promotion of candidates;
– our tribal and increasingly hyper-partisan political culture;
– the increasing lack of care of voters about being lied to by ministers – for, as this blog has previously averred, there is no practical point exposing the lies of ministers if people do not mind being lied to; and
– the absence – despite the Very Strong Opinions of constitutional hobbyists – of a consensus for what alternative constitutional arrangements would be an improvement.
(‘We demand a written constitution’ say those who rarely then explain how a written constitution would not just be an opportunity by the executive to entrench its own power.)
An index of how weak our constitution is in respect of accountability is how, when things go wrong, it is customary to demand a public inquiry.
For if our constitutional worked well in respect of accountability then there would be proper scrutiny at the time – and public inquiries would be an exceptional event.
Mere exposure of problems is not enough – indeed, few of those who think anything about our public affairs will be unaware of many of the problems.
It is instead an everyday failure to get ministers to engage with those problems, to explain what went wrong and to say how the problems can be addressed – the very stuff of accountability.
So many things in our political system now point away from this lack of accountability being fixed quickly.
And so the accountability gap widens and widens.
Brace, brace.
***
Thank you for reading this post.
If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.
****
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
And that, in turn, is the account of the Gloucestershire Police Federation as it is directly linked to at their website (top right).
So, yes, it is a real tweet.
A real tweet by a real chair of a real police federation.
*
Having established the tweet’s authenticity, let us now look at its content.
The tweet states that the police are not public servants.
More exactly that ‘technically’ the police are not public servants.
As there is no ‘technical’ definition of the term ‘public servant’ this is a nonsense.
That a police constable is a servant of the crown – as are many civil servants – does not mean that they are also not public servants.
Crown servants – and others employed by the state in whatever legal form – are public servants.
Now look at the context of the tweet – it is intended as a correction in reply to a fair comment that the police should serve the public, not the government.
The reply denies that this is the case.
*
But not only does this tweet deny that the police are public servants – it also frames the concept of ‘policing by consent’ as a ‘general principle’ but not a ‘duty’.
‘To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect.’
Indeed, each of the principles is set out as an express ‘instruction’ to constables: ‘to recognise’, ‘to maintain’, ‘to use’ and so on.
As such each of the principles is also a duty – and this is because – ahem, technically – a duty can also be a principle, and vice versa.
Especially when they are expressly framed as such, as they are in that formal definition of ‘policing by consent’.
But for our tweeter, these express instructions can be defined out of from having any actual application because they are only ‘principles’.
This, like the tweeter’s other distinction, is itself worrying and telling.
Policing by consent is not an optional nice-to-have in modern society – it is foundational.
That it can be expressly stated to not be a duty – notwithstanding the actual words of the instructions – is a disturbing insight.
*
Perhaps the tweet was a just a slip, not to be taken seriously.
(Though, remember the police themselves are often not so forgiving of the slips of others.)
Perhaps there will be a clarification, or something.
Or perhaps the tweets provided an indication – an insight – into a mindset of certain police officers.
That not being public servants and that not policing by consent are both a quick distinction away from having practical application in the discharge of their important role in our society.
***
Thank you for reading this post.
If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.
****
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Whenever a constitutional wrong becomes apparent there is a reflexive demand for a ‘written [or codified] constitution’.
Having a written constitution, it would seem, would just make things better – rather than, as is my view, probably make things just as bad but differently.
(On my scepticism about written constitutions as a panacea see my Prospect piece.)
But this post comes at the topic from a different angle.
Those who demand a written constitution often seem unaware that it is already set out in writing – if you know where to look.
And just as those who wish for a month of Sundays usually do not know what to do with a spare afternoon, those who pine for a written constitution do not read where the constitution is already set out in writing.
Here are four places where you can read the constitution of the United Kingdom online which you may or may not already now about.
Note, however, that each of these are practical rather than academic or theoretical materials.
*
The first is the Cabinet Manual – which governments (of all parties) since 2010 have averred sets ‘out the main laws, rules and conventions affecting the conduct and operation of government’.
Of course, this is the government’s own view of the constitutional arrangements in which it operates – but it also is a comprehensive and clear overview of how the various elements of state are at least supposed to fit together.
So much for the ‘high level’ constitutional summary – now we turn to how public bodies make (or should make) decisions.
Here we have a wonderful publication published for government lawyers called ‘the Judge over your shoulder’ – which is described formally as ‘guidance to help you understand the legal environment in which government decisions are made and assess the impact of legal risk’ – and is described informally as pretty much a god-send.
This publication set out how decisions and actions by public bodies can be rendered ‘judge-proof’ – that is lawful – and it is updated from time to time.
We move on now from the executive to the legislature, that is parliament.
The key text for understanding what parliament can and cannot do – and the text of which can make a real difference at important political moments – is known as “Erskine May’.
More formally ‘a treatise on the law, privileges, proceedings and usage of parliament’ – this document was for a long time (indeed for far too long) only available to those who knew of its existence and could afford the prohibitive hundreds of pounds that it cost to purchase in hard form.
Such inaccessibility was an outrage – and so it was a boon when the entire text was placed online.
In particular to the the power of the courts to review (and sometimes quash) both government decisions and even statutory instruments made under acts of parliament (but not the acts of parliament itself).
The ‘Judge over your shoulder’ gives the government’s view – but to see it from the perspective of the courts (of England and Wales) you need to know about ‘Part 54’ of the civil procedure rules – and its attendant practice direction.
This is, of course, written in legalese – but they also provide an understanding of how the courts would go about holding the other elements of the state to account.
A grasp of what it actually means when you read that ‘the government has been taken to be court’ is invaluable to anyone following the tensions between ministers (and other public officials) and the judges.
Of course, these are not a substitute for a codified constitution – but they do set out in writing what – at least – should happen in the constitutional affairs.
Enjoy clicking and reading.
***
Thank you for reading this post.
If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.
****
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
One of the marvels of modern story telling is, of course, Bagpuss.
And one of the most instructive stories of Bagpuss is The Mouse Mill, where the mice devise and construct a mill for the provision of chocolate biscuits.
[Spoiler warning for episode eight of Bagpuss.]
*
https://www.youtube.com/watch?v=XbD_notXRVQ
*
The mice, however, are not making the chocolate biscuits out of butterbeans and breadcrumbs as they aver.
They are instead simply recycling chocolate biscuits, thereby controlling both ends of a supply chain.
Until now, the mice’s chocolate biscuit factory was perhaps the most ingenious method yet conceived of having it both ways in the provision of a good or a service.
But now we have the Deloitte contract for track-and-trace, where they appear to be able to answer parliamentary questions and freedom of information requests about their very own services.
*
Over at the Huffington Post, the experienced and well-regarded political journalist Paul Waugh has disclosed that Deloitte are drafting the answers to parliamentary questions in respect of matters for which Deloitte are providing the government with services.
I have not seen the contracts, but on the safe assumption that Waugh is a reliable news source, we can trust the following report (emphasis added):
‘Four different contracts show that Test and Trace has been using Deloitte for “general management consultancy services” ranging from building testing capacity to stockpiling and logistics oversight.
‘But buried within the contracts are details of help provided with PR and communications, with a requirement to “draft and respond to parliamentary questions, Freedom of Information requests, media queries and other reactive requests” and to “support lines to take and Q&A’s in anticipation of queries”.’
*
You do not need to have suffered years of experience with government contracts to know that legalese here quoted by Waugh rings true.
It is certainly not the sort of wording anyone would invent – and so it is no doubt the case that this is an actual contractual provision.
And the legalese is precise – crucially the contractual wording is not about simply providing the information that would allow the civil servants to draft and respond to parliamentary questions and freedom of information requests.
Had that been the purpose and intention of that contractual provision, then that is what the provision would have said.
Instead the parties chose to use wording where the external provider is obliged to draft and respond – and not the civil servants.
As you will see, this detail matters when we come to the government’s rejoinder.
*
As Gemma Abbott, legal director of the Good Law Project, is quoted as saying:
‘We have a government so addicted to outsourcing that it has even outsourced being held to account.
‘If a member of the public submits an FOI request, or an MP asks a parliamentary question about the government spending millions on contracts with Deloitte, it seems that it’s Deloitte at the other end marking its own homework – it is beyond parody.’
Her point is well made.
*
‘…the mice put breadcrumbs and butterbeans in the top, and they work the mill, and out come the chocolate biscuits…’
– Bagpuss
‘Impossible, impossible, it isn’t true. I am going round the back to what is happening’
– Professor Yaffle
*
There is, of course, nothing wrong with any consultancy firm providing services to the government – and, indeed, there is an advantage to certain tasks being allocated to external professional advisers and service providers.
But there are certain tasks which should not be contracted-out and outsourced.
The problem here is not with Deloitte offering to provide the service of providing answers to parliamentary questions and freedom of information requests – for they are a provider of services – but the agreement of the government that this job be undertaken by external providers.
The real culpability lies with the government.
The effect of the transaction is that a service provider will be responsible for providing “draft[s] and respon[ses] to parliamentary questions, Freedom of Information requests, media queries and other reactive requests” about their very own services.
This cannot be right in principle.
*
At the end of the Huffington Post story there is a rejoinder from the government:
‘The government employs contractors in the same vein that private businesses do and responsibility for answering parliamentary questions, freedom of information requests and media enquiries rests firmly with a team of civil service communications professionals within the Department of Health and Social Care. Every single response is subject to the highest levels of scrutiny to ensure they are both factual and detailed.’
If this was the case, then it is difficult (if not impossible) to explain the legalese quoted in the news report.
Either the contractual wording sets out the true intention of the government or that press statement does – both cannot be (equally) true.
And if the government’s rejoinder is true, then the legal drafting quoted in the news report would (and could) have been different.
*
Why does this matter?
The constitutional significance of this is set out well in a thread by Alex Thomas of the Institute of Government:
Argh – this is really not good. Consultants cannot be the ones writing PQ answers for ministers. That’s the job of a civil service paid for by the taxpayer
Consultants Deloitte paid to draft ministers' parliamentary answers on Test and Trace https://t.co/kzQEXhR2g8
When consultancy reaches so deeply into the state (often legitimately – to buy capacity, let’s not overreact)… and assuming this is correct… were consultants answering the PQs etc because the CS didn’t have time to… or because the civil servants didn’t know the answers?
So the contractual provisions – and presumably the services performed thereunder – are an assault on the norms of the civil service.
Another assault, to go with all the others.
This one, however, does not seem especially directed or deliberate – just a shrug and a signing of some contracts.
We do not even get the glamour of a chocolate factory, or the elusive near-satisfaction of chocolate biscuits being procured only to then be taken away.
The government should not sign any further contracts with the wording of this clause.
There should, of course, be a contractual obligation on service providers to assist the government in respect of freedom of information requests and parliamentary questions and to provide necessary information.
But contracting to provide the service of ‘drafting and responding’ is a significant step too far.
Having control of both ends of the line of accountability is inappropriate – a service provider to the government should not be ‘drafting and responding’ to queries about that service.
One should not be able to both have a chocolate biscuit and to eat it.
***
Declaration: I was a central government lawyer 2003-2005 dealing with freedom of information requests on central government commercial matters.
****
Thank you for reading this post.
If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.
****
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
