Category: Constitution

The Shallow State

It is said that if you stick an oily finger in a beer,  the head disappears as a single molecule’s thickness of oil chokes the surface. Lifeboats used to calm the mighty waves the same way:  all the welling depths of the ocean were stifled by the thinnest film upon the surface. Abandon your theories about the ‘Deep State’: it is the Shallow State which prevents change –  the fine layer upon the surface smothering action from reaching the nation.

The functions of the state interact with the citizen not through great councils or wise heads, but by the hands of junior officials. Wise heads are (on occasion) hired to look after great matters of state, but they are not the ones putting it into effect. They are at the mercy of those junior clerks. The junior staff are not privy to the policy priorities from on high, and not really interested – they just do their jobs. It can be a cushy billet by all accounts, so a good clerk will keep his or her head down and get on with a basic service.  Innovation is punishable.

This level is the interface with the public, which puts all into practical effect.

If an activist has appointed herself in a senior role, threatening junior staff with discipline for not following her agenda, they will go along with it for an easy life, though they may disagree, and even if that activist civil servant has no authority for her action.

More important are the natural processes of recruitment. Everyone has his or her own interests and priorities. There is a section of the Home Office dealing with nationality and immigration: one can imagine who would apply to work in it, and that is reflected in actual staffing. Likewise for many specialist areas. The minister may change, and have new, fresh ideas, but the staff implementing it have their own ideas and they have not changed.  It may be a molecule-thick layer on the water, but all the pronouncements of government are choked before they reach action and the public.

On occasion something dramatic happens:  when an immigration crackdown was announced not long ago, many junior civil servants protested and said they would refuse to implement it. It is rarely so explicit though: The Windrush Scandal was not caused by any order from the Home Secretary to deport those who had arrived here lawfully in a past generation, but by junior staff implementing a version of the rules, either idiotically or, one suspects, maliciously in order to discredit the whole scheme; and it worked.

I should not concentrate on that one areas though – it is not of particular interest, and serves only because of the scandal.

In many areas of government the same shallow-state effect is visible: stifling policy, stifling innovative thinking, and allowing just a few activist staff to have a wider impact. The government machine is too vast, too Byzantine, for it to be any other way.

Can fraud in social security or the National Health Service be curbed, as every government promises?  Not when staff are just getting on with their jobs to process applications as quickly as possible, and not spending time examining the minutiae or questioning suspicions, and not while they are kept afraid of accusations.  Ministers are as distant from the tasks for which they are nominally responsible as is the director of a multinational concern from the teenagers who serve their burgers. They may shout, but all the layers of insulation between them and the actual doers will muffle them entirely, and the junior staff will just get on with their jobs.

Kemi Badenoch has spoken to the Alliance for Responsible Citizenship that government should ignore extremist lobbyists – but she cannot do anything about it, because the real government are the junior staff at the public interface.

The opportunities for activists to fill the power vacuum is clear. They need not be in a supervisory role: someone in a back office wrote the coding that resulted in some government agency webpages having dropdowns that included ‘Islas Malvinas’ and ‘Occupied Palestine’. No one was tasked with checking and intervening. That at least appears to have been resolved after it was brought to higher attention. Many low-rankers are in the meantime still writing ‘guidance’ notes, enforced as iron law, forcing their own ideas on the junior staff, with no authority to do so.

We read of an employee of ACAS, a government agency, hounded out and slandered when he questioned critical race theory: race-hatred was to be enforced as unquestionable dogma, by the authority delegated by a Cabinet Minister. The tribunal was astounded, but ministers nominally in charge did not even notice. It is no part of government policy, and indeed has been condemned by ministers, so who is in charge, and why are they not removed?

The permanent, non-political civil service is not then to be seen in the great mandarins treated nominally with reverence, but collectively in the most junior layer, whose hands do all, working away at their tasks, keeping their heads down, insulated from the politics afar off from them. They are the single, thin layer that interact with the public, collectively stopping anything from changing.

See also

Books

Soveraigne Power: The Hurt Proceeds From Not Submitting Readily

But a man may here object, that the Condition of Subjects is very miserable; as being obnoxious to the lusts, and other irregular passions of him, or them that have so unlimited a Power in their hands.

And commonly they that live under a Monarch, think it the fault of Monarchy; and they that live under the government of Democracy, or other Soveraign Assembly, attribute all the inconvenience to that forme of Common-wealth; whereas the Power in all formes, if they be perfect enough to protect them, is the same; not considering that the estate of Man can never be without some incommodity or other; and that the greatest, that in any forme of Government can possibly happen to the people in generall, is scarce sensible, in respect of the miseries, and horrible calamities, that accompany a Civill Warre; or that dissolute condition of masterlesse men, without subjection to Lawes, and a coercive Power to tye their hands from rapine, and revenge: nor considering that the greatest pressure of Soveraign Governours, proceedeth not from any delight, or profit they can expect in the dammage, or weakening of their subjects, in whose vigor, consisteth their own selves, that unwillingly contributing to their own defence, make it necessary for their Governours to draw from them what they can in time of Peace, that they may have means on any emergent occasion, or sudden need, to resist, or take advantage on their Enemies.

For all men are by nature provided of notable multiplying glasses, (that is their Passions and Self-love,) through which, every little payment appeareth a great grievance; but are destitute of those prospective glasses, (namely Morall and Civill Science,) to see a farre off the miseries that hang over them, and cannot without such payments be avoyded.

See also

Books

Constitutionally guaranteed despotism

Americans are proud of their Constitution protecting liberties, but it leaves Americans much less free than other nations.  They are the least free of the Anglosphere (Trudeauean Canada excepted). This blog recently praised John Stuart Mill’s insights, but on America he was naïve in his optimism: they have tied themselves into a habit of despotism. The Constitution is a conspirator in this.

Mill wrote with rather too much hope than sense that:

let them be left with out a government, every body of Americans is able to improvise one, and to carry on that or any other public business with a sufficient amount of intelligence, order, and decision…. No bureaucracy can hope to make such a people as this do or undergo anything that they do not like.

In practice, this means that there are, in the United States, endless layers of government, each with its own bureaucracy, each making new rules to pile on top of rules. While the British legislature is one Parliament that has to cover the manifold needs of the whole realm, from which it is burdened, barely ever able to act swiftly, America has endless little parliaments, each one a village Napoleon, demanding obedience to the alleged will of the people.

Even in the Stepford-Wives streets, much of America has Home Owners’ Associations, with private rules unburdened by the Constitution, commanding eve the very length of grass in a front yard and the position to the inch at which a car may be parked.

If there is no relief from the layers or lawmakers trying to flex their powers, it can be no wonder that American are burdened by more laws that any other English-speaking nation.

It goes deeper though. The Constitution lays down limits beyond which government may not go.  The limits are broad: they do not prescribe every action. A shard of government may be tempted t determine that if the Constitution does not forbid, then there can be no objection to any outrage. That is wrong. On this side of the ocean, Parliament is free to trample on any liberty, but is restrained more effectively by protest from the back-benches than by any laws.

(There is also the other consideration:  one liberty not permitted to our people is a liberty to carry guns, as a result of which Britons can walk freely in the streets without fear.)

The Americans have many advantages unavailable to our islands – they have almost unlimited land, which is therefore cheap , and with it the ability for enterprise to flourish. A gigafactory can be plonked into the desert – here we have to scour the land to find anywhere big enough and desperate enough. In this, Americans will always be freer.

Land though, while a blessing, is also under a curse.

A frequent outrage we read about in America is the light way they have with private property.  Those who were drafting a Declaration of Independence first includes as the trio of basic rights ‘life, liberty and property’, but withdrew the latter at the last minute, as it might prevent necessary forced acquisition for roads – and now every petty layer of government freely indulges in ’eminent domain’ to seize whatever they want.  In Britain, compulsory purchase is a burdensome, slow process and so rarely used – thank goodness for that. It may slow down every major infrastructure project, but better that than to lose our homes and fields and businesses to the whim of a passing council official. Our liberty of property is understood: we consider these right to be so self-evident there is no point writing them down. If we did write them down, they would be weakened rendered as mere paper, with an edge, not a principle written upon the very understanding.

I would love to see America becoming actually the land of the free they sing of. It will take though a major change of outlook and unwonted restraint by may layers of eager politicians, or by voters.  There is no sign of it now. That is a pity.

See also

Books

 

Mill against the bureaucracy

The word ‘Bureaucracy’ means ‘Rule by the office’, and the dull office does indeed rule all. The word started as a jibe and a warning of a tyranny of clerks, and is now accepted as the established form of government.

The complaints of politicians against the intransigence of Whitehall mandarins is justifiably met the retort with ‘Well why have you done nothing about it in the last 13 years?’ Is there anything that can be done though?

John Stuart Mill was not as modern liberals are, ‘too heavenly minded to be any earthly use’ but had his own liberal philosophy grounded on practical reality, which in a way made him more Hobbesian than he would have cared to be thought.  He observed sagely of the ways of the bureaucracy:

But where everything is done through the bureaucracy, nothing to which the bureaucracy is really adverse can be done at all.

The constitution of such countries is an organisation of the experience and practical ability of the nation, into a disciplined body for the purpose of governing the rest; and the more perfect that organisation is in itself, the more successful in drawing to itself and educating for itself the persons of greatest capacity from all ranks of the community, the more complete is the bondage of all, the members of the bureaucracy included.

For the governors are as much the slaves of their organisation and discipline, as the governed are of the governors. A Chinese mandarin is as much the tool and creature of a despotism as the humblest cultivator. An individual Jesuit is to the utmost degree of abasement the slave of his order, though the order itself exists for the collective power and importance of its members.

It is not, also, to be forgotten, that the absorption of all the principal ability of the country into the governing body is fatal, sooner or later, to the mental activity and progressiveness of the body itself. Banded together as they are—working a system which, like all systems, necessarily proceeds in a great measure by fixed rules—the official body are under the constant temptation of sinking into indolent routine, or, if they now and then desert that mill-horse round, of rushing into some half-examined crudity which has struck the fancy of some leading member of the corps.

See also

Books

How to get things done

There is a way to organise, to remove the ineffectiveness that plagues Whitehall. The current system is fine-tuned to fail: deadlock to inaction is built in by design, as the last thirteen years have shown. Now that Whitehall is faced with an impossible labour, replacing all Brussels laws, a new way to do things is vital.

There is a known solution, described by John Stuart Mill, one of the few non-Hobbesians who is quoted on this site with honour.

A committee, which takes minutes and wastes hours, is an efficient way to do nothing. There is no need to repeat all the faults of committees, as we all know them.  Beyond the commonplace remarks, a committee is a way to bring together a range of thoughts and insights into likely consequences, but it is drawn from a narrow range of experience, and the system is devised to avoid personal responsibility, and to prevent coherent decision. One strident voice on a committee can cast doubt in the collective wisdom and prevent the overwhelming majority from making a decision there and then – it is something I have done often enough myself.

What remarkable system of work was it then that Mills described? –

This mode of conducting the highest class of administrative business is one of the most successful instances of the adaptation of means to ends which political history, not hitherto very prolific in works of skill and contrivance, has yet to show.

He refers to the system by which India was ruled in the latter days of the Company. It took the strengths of the committee system but eliminated its basic flaws. He wrote:

The relation which ought to exist between a chief and this description of advisers is very accurately hit by the constitution of the Council of the Governor General and those of the different Presidencies in India. These councils are composed of persons who have professional knowledge of Indian affairs, which the governor general and governors usually lack, and which it would not be desirable to require of them. As a rule, every member of council is expected to give an opinion, which is of course very often a simple acquiescence; but if there is a difference of sentiment, it is at the option of every member, and is the invariable practice, to record the reasons of his opinion, the governor general, or governor, doing the same. In ordinary cases the decision is according to the sense of the majority; the council, therefore, has a substantial part in the government; but if the governor general, or governor, thinks fit, he may set aside even their unanimous opinion, recording his reasons. The result is, that the chief is individually and effectively responsible for every act of the government. The members of council have only the responsibility of advisers; but it is always known, from documents capable of being produced, and which, if called for by Parliament or public opinion always are produced, what each has advised, and what reasons he gave for his advice; while, from their dignified position, and ostensible participation in all acts of government, they have nearly as strong motives to apply themselves to the public business, and to form and express a well−considered opinion on every part of it, as if the whole responsibility rested with themselves.

This simple description (in his work “Considerations on a Representative Government“) sets out an effective governing structure in which all councillors may contribute, and so the Governor has the benefit of their wisdom, and in which collaborative decision-making can be effective: but it has the crucial distinction that the Governor and councillors all take personal responsibility, and where, if the committee is deadlocked, the Governor will decide and act.

One might think that councillors would be cynical about their role, knowing they are constitutionally powerless, as the Governor will decide on his own. In practice the councillors are incentivised to work hard and be part of a collective decision.

Width of experience in important in a council or a committee. In considering which Brussels rules of farming should be kept and which swept away or liberalised, there is little point having a committees manned with London-cloistered civil servants who cannot tell a cow from a bullock: that sort of impractical ignorance is why Brussels made it illegal to bury a dead sheep. Proper consideration needs farmers to lead, and those who know the specific regulations sitting beside them.

Generally, civil servants are open to outside advice. I have been involved with many consultations: the clerks in office know that they are ignorant of the realities in the fields they govern and so they ask for public comment from those in the relevant trade. It is a slow process though; a simple statutory instrument can take two years to settle. There is no time for that now: the Jacob Rees Mogg deadline at which all Brussels laws will expire is eleven months away. The committee system and the consultation system are incapable of doing the job with any degree of competence.

The path of least resistance, which the mandarins or Whitehall will press, is that every directive, regulation and decision the EU imposed shall be transcribed by copy-and-paste into a British statutory instrument, merely changing the ring of stars to the royal arms and removing the Slovenian translation. That is missing the point entirely: each imposition must be weighed in the balance and found wanting, or wanted. It may be kept only if objectively justified, and not out of mere caution.  For that we need Mill’s governors and their councils (if not by those names).

Therefore we come back to Mill. Each field of burden and regulation must be examined by a council constituted for the purpose, appointed by the minister in charge, and at its head not a chairman but a decisionmaker, guided but not bound by the council, whose sole decision will decide life or death to a regulation. On his or her voice alone, rules are repealed or repeated (or placed before the House to be). “This … is one of the most successful instances of the adaptation of means to ends … which political history… has yet to show”.

I would hope that they also have to hand and heart a copy of On Liberty.

Is it possible, even by this method, to achieve all this within the time allotted?

Depend upon it , sir; when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.

The impossible sunset deadline is to be held for two reasons: it is the only way to stop the bureaucracy from prevaricating; and it will distract them into a practical endeavour, to keep their hands out other petty interference.

Mill of course was not writing of Brexit but of India with a view that his observations be of wider application.  The lesson which can be learnt from applying this governor-council system can be applied to many fields of administration.  One might not name the decisionmakers as ‘governors’ – perhaps ‘executives’ or ‘commissioners’ or just ‘decisionmakers’. Those involved need not be drawn from the civil service: there is a good case for contracting functions out to private firms, more attuned t their client’s needs, as I have written before.

In this way the Whitehall deadlock can be lifted, as long as councillors with the right experience are drawn in, and sound decisionmakers are chosen.

See also

Books