Sir Humphrey’s logic

We used to swear by the Civil Service, and now we swear at it. Ministers must still work with their civil servants, but can they understand them? Just as importantly, can civil servants understand ministers?

It seems a unique relationship, but not quite. There are analogies. at least to how the relationship between minister and mandarin show work.

We have all seen Yes Minister, and those who have been in Whitehall testify that it is more of a documentary than we would hope. (The writers had a group of inside informants and much of what happened on screen was a reflection of what was actually happening, incredibly.) The world it portrays has senior civil servants confident that they are the actual government, the permanent class who go on, while politicians come and go and are at best an annoyance. That seems to be genuine too.

Be fair to them: the civil servants are professionals who, and are faced with amateurs. What is a professional to do? He is the one who knows how things work, who sits where and how they will react, and what happened last time, but in come the amateurs insisting they are in charge and wanting to change things without knowing how they are set up in the first place. Any action is taken in the knowledge that in a year or a week that bumbling amateur will be out and a new man will be in with different ideas, ready to unwind all the changes.

Reshuffles are bad enough, but when there is an election it may force a thorough-going change in direction and the put-upon mandarin will be called upon to reverse all the hard work done before. In that case, there is every motivation to hold back and ensure that anything done can be reversed. That does not sit well with the political thrust to radical change. Clashes are inevitable.

John Redwood wrote recently of how he helped Margaret Thatcher to get her reforms through a reluctant Civil Service and, if I read it correctly, the biggest factor of retardation was reluctance to release any powers of the state, and consequent loss of wonted control, which is why the 1980s privatisations were so painful to do.

In the recent years of political chaos and serial general elections, the impermanence of political direction was a reality and the Civil Service had to carry the ship of state on an even keel with little help.

In a democracy, the Civil Service cannot be autonomous and the two sides cannot work without each other. The relationship is like that of client and accountant or client and solicitor: the professional may be tempted to think that he can work without his client, but his whole purpose is to fulfil the client’s requirements.

If an entrepreneur goes to his solicitor and asks for something impossible or illegal, the solicitor is under a threefold duty; which firstly is to advise that the proposed course as described cannot be done. Some will stop at that point thinking their duty done, but it has not been. The second limb is to analyse the client’s actual requirement, the position he or she wants to reach, and find a way to achieve it which is possible and legal. The third is to get on and do it.

The accountant or the lawyer may know the intimate detail of his own field better than the client, but the purpose of his field is to serve his client, who knows his or her own needs better that the accountant will. Just as some accountants or lawyers think they have done their bit as gatekeepers by saying ‘no’ when it comes to a limit of the possible, so may some senior civil servants, but in both cases that is wrong: the mandarin’s duty is to understand the minister’s requirement and carry it out, maybe not in the way that is requested as that might be impractical or illegal, but to fulfil the actual requirement and motivation.

The Civil Service though is a monopoly and has all the bumbling inefficiencies of a monopoly. An entrepreneur can fall out with his accountant and go to another. Therefore each practice keeps itself efficient and provides tight service to keep its clients happy. Each firm too will watch what others do and imitate best practice, so that all are steadily improved. That does not happen in Whitehall: a minister cannot just ring a rival firm of mandarins to give a better quote or which has a more specialist practice. It would be better if they could.

In the meantime, we have a dynamic relationship of political and administrative spheres, which is not working well in all ministries, through misunderstandings, timidity and reluctance.

It does take a skilled professional to read his client’s mind and interpret what is the actual end to be reached, but that is the job. It is not meant to be easy, but if you can only handle easy, Sir Humphrey, you should not be there.

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Where is the text, Boris?

A negotiation starts with a document. Whoever slams their document on the table first is winning all the way through, if he can just keep it on the table. That document is the basis of the agreement to come, and though it may be cut about, covered in red ink amendments, sworn at, had appendices nailed on and provisos enough to sink a trawler, it is the chassis on which the agreement is built. Its basic definitions are the pre-conceptions, the bones on which it grows, and its structure the structure of the deal.

Where is the text? The British text must be on the table in Brussels on Day 1.

Mrs May’s team were hopeless:  they just waited limply for the Europeans to suggest things and, as they had no ideas of their own, they had to go along with them.  We saw the result, and the House of Commons spewed it out of their mouths. This time it matters, as this time we are not looking at a year-long transition but a trade treaty which may last for generations.

Before the negotiating text there must be the Heads of Terms, and we have these in the form of the Political Declaration, which is why it is so important. The text must follow that framework and if it does so there can be no complaint of reneging on the deal.  We have seen the Europeans backsliding on their word already, trying to add into their position elements which were specifically removed from Mrs May’s surrender version of the political declaration.  They cannot be trusted to produce a text. However there is a wrinkle or two in that: more later.

The political declaration is very good: it is not comprehensive we can’t quite say ‘yeah, that’ and leave it to go no further, but it provides enough of a skeleton to build a very well-set body upon.

Long before we got to this stage the Brexit-bearing thinktanks had been working up to this moment, saying they have a text in embryo. Very well – let us slam that text on the table.

The pre-match sparring has been done, the taunts and feints. The teams are gathering. MI6 I hope has done what needs to be done as the other side have (but that idiot from the DGSE was too obvious, Monsieur). The places are set around the table (with the sun shining in the British delegation’s eyes in the afternoon and the wobbly chairs etc) but the meetings are on.

So where is our text?

The noise from Brussels and Paris should remind Whitehall of a few lessons learnt over the last forty years of negotiating with the European institutions, but which they incomprehensibly (and incompetently) seem to forget every time. Brussels haggles the way you should:  to win a cow they ask for the herd.  It is a British curse that our Foreign Office wallahs misunderstand and hand over the whole farm.  It is not to be wondered that the European politicians push at the envelope, beyond the terms of the Political Agreement, as they might just get away with it, and if not, bien, that is where you have to start. No one should be riled but they should understand this for what it is.

Even so, we need to get out text down first.

For one thing, our people will be better at writing a text. Anyone who has had the misfortune to have to wade through a European Union text will know how awful it is – long screeds of political preambles beginning “whereas” and then straight into jargon that begins to depart from commercial reality from page 1 (or, after those preambles, page 23).

The British delegations always had a reputation for common sense and plain speaking: deploy those now or we will be knee-deep in fluff searching for any substance. That indeed is how to hide the horrors: bury them in fluff. Fluff cannot be argued with but can be filled with Trojan horses, and eventually after wading through endless, meaningless words your counterpart starts agreeing things just to get rid of it, and that is where you win. It is unprincipled, timewasting, dishonest, thoroughly European, and devastatingly effective.

The British drafting technique is rather different: define your basic precepts, say what you mean and leave it at that. On such a structure there is no perch to add ambiguity and political blind-sides and it can all be wrapped up in a couple of months. I have done more complicated deals in less time.

It is traditional at this point to wish the team good luck, but it is not about luck. I hope that they will understand if my wish is more blunt: “Get on with it.”

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Minutiae – the big failing

There are many wise heads in senior positions in Whitehall (and many who think themselves wise, but they are easily run around). The upper levels of the Civil Service are staffed by the best of those who are allowed through the flawed selection process.

In that case, why is everything that comes out of government a bit rubbish?

The chain of action

I have observed the top brains making high-level decisions to mould policy from policy, which decisions are then passed down to the lesser levels to flesh out the practicalities; then these decisions (through however many levels are required) eventually come down to the junior level to put into effect.

At that junior level there may be bright sparks, but mainly those who just want to do a day’s work according to their best understanding of instructions, and go home. They have not sat in the top-level meetings where the strategy is grown and the purposes are defined, and get the idea only through Chinese whispers.

A jobbing clerk has little incentive nor ability to “own” a project. Work to the end of the day, play safe, do not be shouted at – do not use initiative. You can see everyday carelessness in detail such as documents written on computers still set up with Microsoft defaults, US-English and font styles never used n the text, or forms which look nice but which cannot be completed on-screen without reformatting. You can see it in forms which cannot cope with variants in personal circumstances or understanding.

Form design could be a whole volume of jeremiad. Perhaps the junior officers tasked with it are told not to spend too much time, but it is a false economy as every shortcut can cause an exponential effect of wasted time when members of the public try to grapple with it.

In the detail of regulations too, the same effect is seen.  I lose track of the number of times I have had to intervene in a consultation on new regulations to point out the obvious that has been misunderstood or just passed over as tedious detail.

In 2007 I even saw a draft Statutory Instrument referring to such countries as ‘Portuguese Timor’, ‘Kampuchea’, ‘Zaire’ and (amazingly) ‘Cyrenaica’. I was able to point this out before they were published. The enacted SI still has Portuguese Timor and Zaire, amongst other anachronisms.

Details are off-putting to those with better things to do with their limited time, but detail matters because it is the level at which members of the public interact with the state.

Furthermore, every failure at the interface requires more work, more calls to helplines, more repetition, more frustration and more justification for the individual circumventing the system my misreporting. Failure in detail costs money and frustrates the purpose of the government activity concerned.

Political style

It makes no sense for the government at the political level to say that they are in favour of, say, equal treatment of every part of the realm if documents produced at the junior level forget the existence of Scotland and Ulster, or mention them only as an add-on. When the government is committed to preserving British interests, it makes no sense if online forms refer to the Falkland Islands as the ‘Malvinas’ (which is the case in some drop-downs I have found).

Where there is a fixed political policy which should be reflected across the board in government communications and actions, there should be consistency.

Away from policy, there are also fixed standards which may mean nothing to middle- and junior-level officials but which are important in the wider scheme of things: for example in any publication referring the armed forces, one always say “naval and military” not “military and naval”, because the Royal Navy is the senior service. How many would be aware of that one? Grammatical standards, presentational style and good practice – all are should be kept up to ensure the government machine not only works but is respected.

One cannot expect every individual in the civil service to be aware of every political or stylistic policy possibly affecting what he or she is doing by drudge -work though, so consideration is needed as to how to bring consistency to the sprawling machinery of government. Some better communication of policy priorities is a possibility but it can only have a limited effect given how mealy-mouthed government communications are and given the limited hours there are in a day for a junior official to do his or her work. Therefor another approach is needed.

μ-intervention

The complexity of the chain of command suggests a high risk of failure.  Experience shows this happens very frequently. There are systems in place to minimise the failures, but systems create their own inflexibilities, and there will be no committee tasked with correcting errors, no cross-departmental thinking and no method of intervention.

In that case, Whitehall needs a mechanism for direct intervention could be deployed when a system has gone awry. This is micro-intervention.

A μ-intervention unit would be cross-departmental, operating out of the Cabinet Office or Privy Council Office (or even the Lord Chancellor’s department, since the Lord Chancellor in days of old was responsible for standards in official documents).

It is little use if it just writes standards that might not be followed: that is useless on its own. In any case there are committees writing standards, as for example in the digital realm the Government Digital Service and the ‘Design Community’ do – and yet forms are still written badly.

No – a micro-intervention unit would need authority to dig into systems at every level, accessing computers directly to fix mistakes and make improvements.

It is petty detail that they would strike at, but with the intent to save more time, more money, and improve the practical interface between the citizen and the state.

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Wednesbury reform will not reverse the Cherry / Miller decision

Team Boris has turned to reform of judicial review, as I have argued they should several times over the last few months.  However a simple change to reassert the Wednesbury rules will not fix the system on its own. It will not overturn Lady Hale’s decision on the prorogation case (Cherry/Miller).

There is no avoiding going over old ground to some extent, but to avoid repeating everything I will refer to previous articles:

Few judicial reviews actually succeed (about 1%, plus some out-of-court settlements) and this has kept the procedure out of the headlines until the recent Gina Miller cases, which are the reason for the sudden interest in reform. There have been troubling decisions in past years though (as other articles outline), and it is just that their political impact was limited.

Even amongst the claims brought by ‘Remainiacs’, it is only the last decision, the prorogation case, which stands out as a wildcard decision, and one wrongly decided in the opinion of much of the legal profession.

The Wednesbury rules are the main focus of comment and are widely cited with approval. These are a good, principled set of rules for judging the propriety of administrative decisions where the authority is granted by statute and that statute intends that the powers be used for a particular purpose. Therefore a power of compulsory purchase granted to enable infrastructure projects should not be used instead to acquire land for property speculation, and a power to impose planning conditions should not be used to get the developer to provide a new, unrelated civic facility (which are both genuine examples).

However, the Wednesbury rules were invented by judges out of necessity for lack of any guidance from Parliament. As a result, the rules can be stretched by a judge who wants a particular result. Leading judgments emphasise that decision-makers make decisions by their own discernment and judges may not substitute their own ideas, but in other judgments a judge has found a perception of a flaw through which he may crawl to strike down a decision he does not like. All this is because Parliament has hitherto failed to do its duty in defining rules for the interpretation of the powers it has granted. It is for the authority granting a power, namely Parliament, to define what power it is granting.

Once the rules can be defined on the original, Wednesbury principles and Dicey’s concept of the rule of law, then mission-creep can be restrained. That still does not affect the Cherry/Miller case though.

A change in the law will not always change the judgments. Statute law is black and white, but it is interpreted by each judge. There are several examples of judges deciding that an Act passed to overturn a judgment has only really restated the existing law so no change is needed: in this you might think of the attempt to liberalise contempt of court after the Thalidomide case – the words “serious harm” are easy to read as “anything more than negligible harm”.

A point well made in the commentaries concerns interference with prerogative powers. This is not about making governments powerful but about the fundamental rule of law, which is a very Conservative concern. The Wednesbury Rules of reasonableness and purpose apply to delegated decisions because delegated authority is always limited authority, but the Royal Prerogative is primary power, not delegated, and so it should not judged by those limits, only by the actual extent of the power. Some judges have trespassed there, and each precedent invites a new trespass. That must be slapped down. It still does not affect the Cherry/Miller case though.

The Prorogation case of Cherry/Miller is unaffected by any Wednesbury reform.  Lady Hale was careful to word her decision not as a Wednesbury case nor as turning on reasonableness or proper purpose or what was said to The Queen, but as turning on a primary constitutional rule. This rule was hitherto completely unknown – or to put it plainly, she made up.

The Prorogation case is in a line of dangerous decisions treading on the common law constitutional understanding. It will be hard to ensure that no Hale-type usurpation takes place in the future, if judges are prepared to invent new rules, but curbing the tendency must help. This particular case would need a discrete rule, that “no common law rule limits Her Majesty’s authority to prorogue or dissolve Parliament nor the length of the prorogation or dissolution”. (No ifs; no buts: add any condition and you bring the whole Wednesbury apparatus into it.)

It is worrying if Parliament now has to think of constitutional fundamentals which some wild judge might think of overturning. It would be unthinkable for a court to invent a new condition to prevent Royal Assent to a Bill, for example, but an invented rule about prorogation that contradicts every textbook written in the last 500 years would have been unthinkable just a few months ago.

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Hobbes manifesto: taxes and publique charity

Equall Taxes

To Equall Justice, appertaineth also the Equall imposition of Taxes; the equality whereof dependeth not on the Equality of riches, but on the Equality of the debt, that every man oweth to the Common-wealth for his defence. It is not enough, for a man to labour for the maintenance of his life; but also to fight, (if need be,) for the securing of his labour. They must either do as the Jewes did after their return from captivity, in re-edifying the Temple, build with one hand, and hold the Sword in the other; or else they must hire others to fight for them. For the Impositions that are layd on the People by the Soveraign Power, are nothing else but the Wages, due to them that hold the publique Sword, to defend private men in the exercise of severall Trades, and Callings.

Seeing then the benefit that every one receiveth thereby, is the enjoyment of life, which is equally dear to poor, and rich; the debt which a poor man oweth them that defend his life, is the same which a rich man oweth for the defence of his; saving that the rich, who have the service of the poor, may be debtors not onely for their own persons, but for many more.

Which considered, the Equality of Imposition, consisteth rather in the Equality of that which is consumed, than of the riches of the persons that consume the same. For what reason is there, that he which laboureth much, and sparing the fruits of his labour, consumeth little, should be more charged, then he that living idlely, getteth little, and spendeth all he gets; seeing the one hath no more protection from the Common-wealth, then the other? But when the Impositions, are layd upon those things which men consume, every man payeth Equally for what he useth: Nor is the Common-wealth defrauded, by the luxurious waste of private men.

Publique Charity

And whereas many men, by accident unevitable, become unable to maintain themselves by their labour; they ought not to be left to the Charity of private persons; but to be provided for, (as far-forth as the necessities of Nature require,) by the Lawes of the Common-wealth. For as it is Uncharitablenesse in any man, to neglect the impotent; so it is in the Soveraign of a Common-wealth, to expose them to the hazard of such uncertain Charity.

Prevention Of Idlenesse

But for such as have strong bodies, the case is otherwise: they are to be forced to work; and to avoyd the excuse of not finding employment, there ought to be such Lawes, as may encourage all manner of Arts; as Navigation, Agriculture, Fishing, and all manner of Manifacture that requires labour.

The multitude of poor, and yet strong people still encreasing, they are to be transplanted into Countries not sufficiently inhabited: where neverthelesse, they are not to exterminate those they find there; but constrain them to inhabit closer together, and not range a great deal of ground, to snatch what they find; but to court each little Plot with art and labour, to give them their sustenance in due season. And when all the world is overchargd with Inhabitants, then the last remedy of all is Warre; which provideth for every man, by Victory, or Death.

From ‘Leviathan’, Chapter XXX

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