A system failing in the middle

Two types of failing constitutional systems attract overstretched metaphors, for which I should apologise in advance. The first is built as a high, impressive building with soaring arches and glittering pinnacles, but where all is built for show while the unseen foundations are made of cheap rubble: that structure cannot stand in a storm. The other is built on a rock-solid foundation but the superstructure is put together inconsistently and in a slapdash manner, and that will break too, although reparably. The British Constitution is this second type. It is possible to fix this, identifying the inconsistencies and poor choices of material, as long as no one damages the foundation.

The structure of government has been built in a series of reforms inspired by prevailing orthodoxy and though that orthodoxy may have been discarded by the next generation, its legacy remains. We may consider the number of quangos established at many points for narrow purposes which have been left in place ‘just in case’ or repurposed when they should have been abolished. These are a visible application of the principle: what is invisible is the tangle of responsibilities, or avoidances of responsibility, within the Civil Service itself.

Whitehall believes in systems. A system is the only way to deal with millions of complex matters at a time. More importantly, a system is the only way to avoid responsibility for individual decisions: proving compliance with a checklist is a free pass out of criticism. It may be honest to say that the system is to blame, but it must be the responsibility of everyone who works with a system to checking its suitability in all the circumstances that may be thrown at it. That requires stepping outside the system, looking, testing random real and fictional scenarios, and fixing the errors as they are revealed. The Civil Service may not be up to that job. Changing recruitment and promotion can improve it.

Getting the right personnel in the Civil Service is not a question of choosing the Apollonian over the Dionysian character or vice versa nor of finding Gell-Mann’s Odysseans: for a complex system to work well, it must have a mixture of characters. This includes a mixture of political and social attitudes, as Jordan Peterson has explained it. No society can thrive without a mixture of characters: those whose imaginations can create novelty and those whose drive is to create order, because without order, the system cannot stay stable, and is not a system at all, but without chaotic creativity there ossification.

Lack of diversity then is hampering the Civil Service, and I do not mean tick-box categories of race, sex etc, but diverse characters and viewpoints. Without this real diversity, the service cannot operate properly any more than a society could operate. It takes a divergent take on any situation to find the flaws in an accepted method and to challenge orthodoxies.

There is no conspiracy to mediocrity. Senior staff will naturally replicate themselves at all levels. It is natural in all of us to assume that our own attitudes and priorities are right and therefore to discount those held by others as weird or foolish, and therefore in a system which selects its own successors, a single mindset must prevail and become more entrenched as years pass.  If a workforce is made up of staff all with the same turn of mind, this situation must also reinforce each individual’s solipsistic belief in his own rightness and suppress doubts. Where promotion is dependent on peer-approval, it is the most colourless individuals who must rise and re-enforce their type’s monopoly position.

Recruitment to the Civil Service is strained through the same assumptions. The Civil Service aptitude tests assume a single neurological process and certain priorities, but this excludes alternative, equally valid approaches. It has not been framed in this way deliberately but as part of that self-reinforcing principle.

We used to laugh at this sort of thing when it happened abroad: the Chinese civil service in the imperial days used to select its members on national and provincial levels by a set of exams the terms of which were written centuries before, testing candidates on ancient Confucian theory, not on modern practicality. Innovation was squashed and the Empire fell into decrepitude. It ended only in 1905, by which time the empire was about to fall.

To break the uniformity is a major challenge, because it goes against natural processes. The most successful at this have been those with radical left-wing motives, as they too are wedded to systems and push themselves forward though fair means or foul so as to get the power to change those systems. That is not the right sort of diversity though; only another lot of systems-people, and with odd ideas too. The challenge is to bring different mindsets and ways of seeing things.

It has been pointed out by Mr Cummings and Mr Gove that senior civil servants largely come with an arts-subject background. That is no bad thing for an individual and cultivates the mind well, but a monopoly all in that limited field is dangerous. A thousand years ago Ælfric urged the reason we are given two eyes, two ears and two nostrils for our more complete edification. You cannot understand the implications of a statistical analysis from a study of Horace, but you cannot understand people from mathematics. Now, in fact, there is more diversity than that in academic achievement among senior civil servants, if a few too many economists. I would suggest that the main failure in diversity is diversity of character, or neurological diversity perhaps, and that will take longer to break.

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Quite enjoying the Cancel Culture, actually

An empty diary. Everything is cancelled – cultural, sporting and social events, even those due after the lockdown must have finished: no village revels, no funfair, and also no Tolethorpe, no Edinburgh Festival, no Party Conference: I don’t need to make an excuse to avoid any of them.

No canvassing over the spring was a relief. No meetings for any of the bodies whose committees I seem to have been strong-armed into, no AGMs. Many were not cancelled but just sort of wandered off.

You might have come to this article thinking I was talking about the ‘Cancel Culture’ about which other commentators fume: the cowardice in the great institutions finding any petty excuse or none to cancel appearances by people they dislike politically, and yes, that is the usual meaning of ‘cancel culture’. I am not sure that it is much different, as the months go on. Organising a big event is wearying, sapping at the soul and always with the risk of disaster and the criticism that comes with it. They must welcome an opportunity to cancel the event and get it out of their hair. I would. The Wuhan coronavirus is a wonderful opportunity.

You wondered why there was little resistance from the clergy to the closure of churches? It must be a relief to have the time off, and a videoed sermon does the job.

So we are back home. No church children’s summer club to organise this year, even after the lockdown ends? Oh, such a disappointment! No garden parties to run, no quizzes to set, no lengthy financial reports to deliver to critical members. Wuhan? Woo-hoo! And no bookings to take and organise (so now I find that I have evenings, with the family).

I still work of course, and frequent the plague pits of London – I quite miss the early lockdown when there was nothing to fill the day but gardening, DIY, country walks and terror about the future.

Now the lockdown is ending. There have been enquiries about bookings. Meetings and functions though are still all off for the foreseeable future, until we are all really, really sure. With such an excuse to shun those endless social responsibilities, I am in no hurry.

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The Constitution, mice and “yes but”

The word “reasonable” is an enemy: it acts as a codeword opening any decision to challenge. Parliament may think that it is creating wise structures and granting powers to those entrusted with the task, but a structure which has within it “reasonable”, or any one of a number of such tripwire words, is as if the bricks were mortared with porridge.

This is not a subject of grand constitutional reform, but it is what will cause reforms to fail. The pettiest words concealed within an Act or Statutory Instrument can hobble the constitutional intent, so the practices which insert those words are indeed constitutional in their effect, and a consideration of constitutional reform must look at reforming the practices of draftsmen.

Discussion of the topic must sound like a rank about minutiae, but while the intent reformers build mighty edifices, it is these mice which undermine the whole, so if what follows sounds like a rant, so be it.

Taking one popular bugbear as an exemplar: the immigration and nationality rules. The relevant part of the Act of Parliament concerning the grant of British citizenship starts robustly enough, saying that no one is entitled to citizenship unless they have lived in the United Kingdom for three years, and that it is for the Home Secretary to decide whether to grant citizenship. If it went no further then the system might actually be robust. However the wording goes on in a worried tone, and has a “yes but”; the decision must take account of X and Y and Z, that there must be no discrimination of nationality (or the usual list).  That was well meant, but it puts such a wide crack in the Home Secretary’s alleged discretion that any decision is turned over to the courts, such that the rule is not “if the Home Secretary is gracious to grant it” as the plain words say but in effect “always grant nationality after three years unless the Home Office has a rock-solid reason against this individual”. Therefore a small proviso has reversed the meaning of the section.

The word “reasonably” is not a convenient throw-away line:  it means there must be reasons and reasons that will be examined in court.  “In her reasonable discretion” is not “the Home Secretary may decide” but “she must follow a quasi-judicial procedure”.

If a decision shall be made “in all the circumstances of the case”, that is not a fluffing wording: it is an instruction that the decision-maker must be prepared to prove that they looked at all possible relevant considerations, or for any missed point their action will be struck down.

If we broaden our view away from Marsham Street, Acts of Parliament which deal with administrative matters are mountains of pushme-pullyou, granting powers and then taking them away with the same hand. Where politicians express despair at the way courts too readily quash acts done in good faith, the first place they should look is their own practices in authorising them only half-heartedly.

It is not (always) the fault of the judges.  If an Act of Parliament leaves the door open, the lawyers will wander in and help themselves to the larder.

All that said, limitations on powers granted are justified. If you give councils the power to close a road, they must be required to tell the residents, and not to block both ends.  If they have power to impose parking restrictions, it must be for the purpose of easing congestion, not to raise revenue. Councils have power to decide planning applications, but that power is greatly restrained, so that they must act quasi-judicially, must exercise their power with a liberal mind and for proper reasons and according to expectations, because this goes to the heart of rights of property and enterprise. In that case you must expect planning powers to be exercised with excessive care and to be challenged in court, as they are.

Where a statute does give exercisable power, it is given and its limits are defined to ensure the public benefit, but those entrusted with that power will not be able to exercise it to the full extent it is given, because they must be sure of the legality, after advice from a worried lawyer. That betrays the breadth of the original authorising statute.

Some statutes, as I observed, must be curbed around with limits. In other cases though, vague or cautious wording in an authorising statute can mute the powers it is trying to give. If the Home Secretary is to be empowered to control immigration and to grant or withhold citizenship, the wording must be tight and not subject to provisos, however well meant, in order that she can exercise that power or refuse to exercise it, at her complete discretion.

I will at before too long get on to more meaty constitutional topics. I would urge as an integral step though a brutal review of the drafting practices applied in Westminster and Whitehall.

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4 years ago we voted

Four years, eh?  It seems like another world, and who knew where we would be four years thence?

Four years ago, on 23 June 2016, after the slog of campaigning door to door wound up, the polls opened and closed on a knife-edge and it was decided.  Four years ago I dropped my ballot in the box and wondered what I had just done, and four years ago in the evening I stood in the town hall at the count, with a red ‘Vote Leave” badge in place of my accustomed rosette, chatting amiably to my MP, whom I always liked, as a television in the next room announced the results coming in from Sunderland and the great northern towns, watching the colour drain from his cheeks and stifling the exultation in my own. He is gone now too, occasionally popping up on ConHome, but the dustbin of history is cruel.

With my eyes of four years ago it is hard to believe that the United Kingdom is still bound by apron strings to the European Monster and still funding the Commissioners’ wine cabinet.  We knew that there would be a transition of course – even I railed again the ‘cliff-edge’, and I wrote on the very day after the referendum result was announced about issues that still need to be co-ordinated with them over there (and which are still being argued over, amazingly).

The letter withdrawing should have been served at once, as David Cameron said he would (or since Gina Miller’s first legal action prevented it as such the letter should have been sent the moment royal assent was achieved on the Act to authorise it).  The transition period should have been the two years between the letter reaching Brussels and departure, but it was a two-year procrastination.

There were mistakes made before the referendum too, and the first of them was that the Act of Parliament calling it did not say “and if the result is leave, then the Government must do all that is needed actually to leave”. The field was left open for Gina Miller’s legal action, and on that one the Court was probably right, annoyingly, just because a few words were missed from the Act.  Nevertheless, the referendum was on a simple question and all sides were pledged to respect it, so they said.

What we were not to know as we punched the air in 23 June (or punched the ceiling, I understand) was the tenacity of that entrenched establishment that we railed against to obtain the vote. They were not going to give up, and would put every obstacle in the way. 

It seemed so easy:  vote out, get out and sign a trade deal both sides would be desperate to sign (on all the points I outlined at the time). The vote was meant to be a final resolution to a long question, letting us settle into the new normality.

We did not know, we could not guess, that it would dominate every aspect of politics, to the exclusion of all the important things Parliament was meant to be doing, for three and a half long years, destroying two Prime Ministers, two parliaments and many, many political careers.

We did not guess that those sent to negotiate with the European Union would lack the imagination to do things differently, or that some of those entrusted with ensuring an orderly exit would betray that trust and their country’s interests deliberately to obstruct the process in case the referendum result might be reversed.  We did not know that a general election would intervene before time, we could not know that Members newly returned on a pledge to get Brexit done would renege at once, and come within a whisker of revoking the Brexit letter, forcing in any event repeated delays to Exit Day.

We could not imagine that British Members of Parliament, even some Conservatives,  would openly conspire with a foreign power against the interests of Queen and Country.  We hanged Casement for that (and damned right too).

We got there eventually, three and a half years after the vote and a couple of Prime Ministers later. I deafened the neighbours with fireworks on Brexit Night. By that time though the rockets had been waiting in the shed for a long time.

So here we are, where we should have been years ago. Brexit is off the front pages, the doomsters have been proven utterly wrong, so I need not have hesitated over the ballot box that day: the wrecked economy has another cause. It is a new Boris age, and, when the plague has passed, it will be a very good one. By the fifth anniversary, I hope we will be wondering what all the fuss was about.

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The Constitution: mice undermine the wall

A Constitution, Democracy and Rights Commission is a thing around which many projectors will orbit with their ideas, but the brief outlined in the Conservative Manifesto was short, and from Number 10 the challenge is finding what a commission with such a grand name is to do, and what it will not.

There are some big headline issues, like the Fixed Term Parliaments Act, an questions about reducing the number of members of Parliament (the latter already kicked into the long grass). Reducing the House of Lords and winnowing its membership may be discussed. Reform of judicial review is on the cards, but even that is a limited intervention. I have written about that subject before. and will again, but I want to think about the subjects beneath the headlines and which underlie, or undermine, all that stands above them.

There are many points to look at in other articles, but since a frequent topic of concern is judicial review, I may start by looking at the failings which make judicial reviews happen.

As I have observed before, judicial review is rare and applications are rarely successful – about 1% get to and succeed at trial. If it were not for bulging teams of lawyers crawling over every proposed action, there would be more. However it should be worrying that a public authority, having been granted powers for the public benefit, cannot actually exercise those powers without being supervised by a costly legal team. It is as if to grant the power and then take much of it back again.

The issue is a constitutional one: power legally granted yet being hampered by other constitutional reasons. The fault though is not constitutional as such: it is the way in which powers are granted half-heartedly by Parliament, and that is a fault in part from bad habits encrusted over the generations, but also from timidity. Those who prepare Bills and SIs live in fear of criticism if they think too much, and the politicians live in fear of criticism if they leave any gap through which blame may fall. Wee, sleekit, cow’rin, tim’rous beastie, O, what a panic’s in thy breastie! Between these, faltering instructions are given which stifle innovative practice and leave decision-making uncertain unless the decision-makers play safe, which contradicts the width of the powers given.

I will return to this with more particularisation later.

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