The necessity of normality

Members of Parliament are fleeing into isolation. The House has vital business before it. There must be a temptation to take political advantage to bypass Parliamentary norms. More than ever that must not happen.

Jacob Rees-Mogg is taking a robust, parliamentary view, and thank goodness of that. It is in the time that the system comes under most stress and temptation that it must show its strength.

The chamber of the Commons is a close-packed place (when there is a whip out or a chance to be on the telly), and the members are in frequent physical contact with the wider public, so the risk of infection across the whole political class is real. Some members have contracted the Wuhan pneumonia, and many members are vulnerable to its effects by reason of age, infirmity, diabetes or otherwise. From the outside it is hard to see how the meeting of Parliament can continue. If even village-hall keep-fit classes are being cancelled, the expectation would be that the foetid cockpit of Westminster would disperse too.

However, there has just been a budget, and a Finance Bill has to be pushed through or all taxes will expire. At some point the Armed Forces Bill will have to be passed or the army will be disbanded. Parliament must sit to pass these, as well as its normal business.

There is talk too of emergency powers, which is worrying: Tony Blair gave himself extensive emergency powers, which Act is still in place, and those are frightening in themselves without adding more just to be seen to be doing something. (Imagine how the Civil Service will gold-plate any emergency measure they can get Parliament to grant them.)

With so many away and the arithmetic in the House changing, it would be very tempting to push measures through the House which would not normally pass, and to use the excuse to pressurise the Opposition to stop opposing, in the national interest of course. Because that temptation is there, the man in the street is entitled to worry that the crisis will be abused to strip out democracy. For that reason, there must be all the more emphasis on following proper parliamentary norms, all the more involvement of all sides in the house and all parties.

When asked about the emptying House, the Leader of the House, Jacob Rees-Mogg might have purred and called for the government to obtain an enabling act to operate without this lamed parliament, but he did not. He emphasised the use of the pairing system, whereby a member may agree with a sick member on the other side “You cannot vote so I will not”, so maintaining the balance. That is crucial.

He also addressed emergency powers. Instead of salivating over new power to be jealously guarded, he said without question that any emergency powers must have a sunset clause; that they should have a natural expiry. During the War (and we are nowhere near such an emergency) there were extensive emergency powers granted to the government, and the new Attlee ministry elected in 1945 was very reluctant to give them up. Attlee’s Labour Party believed in planning and control of minutiae, and those old wartime powers could be used for that purpose in peacetime. It was not until Churchill was re-elected in 1951 that wartime rationing was ended.

In times of stress, and in times of blind panic, that is when the voice of opposition is most needed. It is needed not just from the opposition benches but from critical members regardless of party. For most of the year one might sail through with the House of Commons as a mere theatre for pre-decided decisions, but when actual thought and consideration are needed, when many alternatives and nuances will make all the difference, in short when there is a need for actual live debate – that is the very reason for having Parliament as we know it.

It was thought when the election result was in and Boris had his stonking majority that it would be full steam ahead on whatever policies Number 10 had in mind. That is no longer the case, during the epidemic. Those members are needed.

In short, democracy must be done, and democracy must be seen to be done.

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Books

Geoffrey Cox: an appreciation

Stentorian – the word that will always be connected with Geoffrey Cox QC, and whenever he speaks, there speaks Stentor of old.

You must remember that speech which he gave at the party conference in October 2018, as newly appointed Attorney-General.  He first began as if he had to apologise to the angry party members for accepting office under Mrs May, but he spoke as an unwavering Brexiteer and won the floor, which rose at his conclusion.

I have not met Geoffrey Cox, despite staying frequently in his constituency. If I ever meeting him, pounding the precipitous inclines of its streets, I will be sure to shake his hand warmly.

His departure from the government was something of a surprise, except apparently to those with inside knowledge. Maybe when you lose too many cases you will consider changing your barrister, which is essential what the Attorney-General is: the Cabinet’s own chief legal adviser and advocate in court. It seems harsh though at our Stentor, for his advice on the Cherry / Miller case (as far as we may discern what it was) could not be faulted by other lawyers, and the Supreme Court’s ruling was surprising to say the least.

Then again, maybe there was a gnawing resentment at his forcefulness in trying to press through the Commons Mrs May’s deal, rebuking the doubters “we are not children”.. and that insult stings when spoken with a commanding voice.

Or maybe it was the inevitable rise of another with a pointed agenda.

A new Attorney-General

Now we have a new, and no doubt talented Attorney-General, Suella Braverman. She may find it a thankless task if she is held responsible for every wild decision by a court, and the clock is ticking for the changes which she herself presaged and will be expected to carry though. She wrote, a fortnight before her elevation that she wanted Parliament to take back control, against “a chronic and steady encroachment by the judges”. This article may have won her the post.

At the same time though she must be the voice of moderation and advice as to the legal points now, not those after any future reform.

A legal adviser is in a poor position, as she must say what the client does not want to hear. Maybe this is why the tenure of an Attorney-General has been so short these last years. It used to be a long-term, non-political position but that seems untenable now.

What then is the job before our new Attorney-General? Possibly to be an activist to rein the wild decisions in, as she has expressed herself on this issue previously. That may be why indeed she has been called forth to be Attorney-General in place of Geoffrey Cox. He advises sagely and cautiously, as a barrister will do, when the order of the day may be active reform.

She has already been attacked cautiously by the heads of the legal profession: the President of the Law Society has rebuffed the idea of encroachment, saying that: ‘The role of the judges is to give effect to the will of parliament and the role of judicial review is to support parliament not to undermine it.’ The two are not incompatible opinions.

The Attorney is also nominally in charge of prosecutions, which has become a sore topic with change in the air.

The Constitution, Democracy and Rights Commission

The Constitution, Democracy and Rights Commission is coming and its member will have to be appointed. (Did I leave my card? You mean you don’t have it? Let me give you my details again…)

It was thought that Geoffrey Cox would be involved as Attorney-General but now it is unlikely that he will be appointed to chair it, and again it may be that the previous speeches by Suella Braverman lined her up to do the job. I wish her luck.

I have commented before on the care that is needed to run the Commission’s task properly. It should not just be a place for activism, in fact it must not even primarily be for activism. Active ideas are needed to push anything forward, but any changes to the constitution must be fair, even-handed and democratic but more than that, they be seen to be so without question.

Back to where we were

Tavistock still has a fine Member of Parliament and I trust will do so for many years, and a member too with a great deal to contribute, perhaps on the new Commission, which would benefit from his experience being entangled in the cases they are tasked with straightening out, or at least informing in the House.

The nation needs a steady adviser as it stretches its wings to look over the world. As it was once put:

Methinks I see in my mind a noble and puissant nation rousing herself like a strong man after sleep, and shaking her invincible locks. Methinks I see her as an eagle mewing her mighty youth, and kindling her undazzled eyes at the full midday beam;; purging and unscaling her long-abused sight at the fountain itself of heavenly radiance; while the whole noise of timorous and flocking birds, with those also that love the twilight, flutter about, amazed at what she means, and in their envious gabble would prognosticate a year of sects and schisms.

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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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Books

Is the Housing Court dead?

Two threads were being spun before the election, in fact during the May ministry, on changes to housing law, and both were bad ideas.  One was to abolish assured shorthold tenancies retrospectively, or as the spinners put it to ‘end no-fault evictions’. The other was to establish a new Housing Court.  The former got through to the Conservative and Unionist Manifesto and to the Queen’s Speech.  I looked at it some months ago intending to revisit it:

The second thread, creating a Housing Court, has gone rather quiet, with the occasional squeak being heard.  A consultation process began at the end of 2018 from the Ministry of Housing, Communities and Local Government. The Law Society were opposed and other bodies responded just by talking about resourcing (or in plain terms, wanting more taxpayers’ money). Is the Housing Court then dead?

The idea of  a dedicated Housing Court is understandable but flawed in concept for three reasons:  first of all it not only putting the cart before the horse, but is failing to include the horse at all; secondly, it will be subject to interest group capture; thirdly, it does not address the major issue.

There is a genuine, deep-seated problem with the current system, and if you doubt that I recommend sitting in a county court office all day.  You may frequently see a strong man break down in tears as his case is adjourned yet again and another month’s mortgage payments are to be made while no rent is coming in and no remedy is forthcoming. The tenant is thumbing his nose at his landlord, paying no rent and may be wrecking the flat so as to make it unlettable, but the landlord cannot do anything.

Some urgent action is needed.  A Housing Court is the wrong action though.

Cart / horse

The fundamental flaw in housing law is that it is complex, hard to find and self-contradictory.  The only experts are those who practice constantly in the field.  There is no single, comprehensive code of housing law.  Instead, innumerable Act of Parliament and statutory instruments have to be read together, and anything read in an older statute may have been replaced by a later one, or even by a section retrospectively inserted into an even older Act.

Typically an Act is passed after a report or a scandal calling for action and may be focussed on a particular list of mischiefs or alleged problems, adding a new complexity rather than smoothing the landscape.

There are contradictions, and inconsistent approaches, which is unsurprising given the piecemeal way in which the law is made.  This inconsistent and incomprehensive branch of law is the fundamental problem which landlords, tenants and courts face, and no new court should be put in place until it has coherent law which it can administer.  If though the law were rationalised, then there would be no need for a new court.

Interest-group capture

Interest group capture befouls many worthy endeavours.  It is a form of regulatory capture, by which a particular lobbying body or interest group takes control of a regulatory or judicial function, and a new Housing Court would be an open target.

The pressure for a new court has come from frustrated landlords, finding their claims for rent and possession pushed back in a queue of other cases The idea has indeed been attacked by tenants’ groups as a landlords’ weapon, but we would soon find that the system is captured by the opposite interest.

The body representing Citizen’s Advice Bureaux saw the idea as creating a landlords’ court and advised that “the power imbalance between landlords and tenants could be made worse”. Shelter, more interestingly, were positive on it (as long as they are given more taxpayers’ money), which alone should make us suspicious.

The idea may be to staff a court with those who spend all their time in the field so as to become experts. However the staff must be recruited, and applications will of course come from those with a particular interest in the field, and successful candidates will be those with long practice acting for tenants.  It needs little imagination to guess the socio-political tendency of the main applicant base, and who will in due course form the interview panel.

There should not be an ideological divide between pro-landlord and pro-tenant as if they were different creatures. Justice should be a neutral forum applying the law even-handedly between individuals, not classes, as it is in the general courts. However in a specialist court that ideal is distorted. The false narrative of eternal class-war is embedded in many and it has informed the shaping of the statutes defining housing law (to the extent that it they have any discernible shape). This idea of opposing, class-based sides will shape the mindset of those seeking to work in any new single-issue court.

The judges may remain fair and neutral, but they are influenced and briefed by their support staff. Then as each decision forms a precedent for the next, the direction of the court as a defender of tenants against their landlords will become institutionalised.

Fundamental toothlessness

A third issue was identified by the Civil Justice Council, which opposed the creation of a specialist court:  the judges currently do understand the law and do apply it justly, but there is poor enforcement.

A thing little spoken-of in the law is that effective landlords are those who ignore the law and evict tenants in ways it does not countenance.  Therefore good landlords are penalised by the Housing Acts for the failings of ruthless landlords, but ruthless landlords are less bothered.

Essentially, if the court eventually orders an eviction, the process of removing the tenant is slow and expensive.  There are too few bailiffs and getting an appointment takes too long, and the bailiff’s costs (and those of a locksmith) must be paid by the landlord already impoverished by months of legal proceedings.

Without enforcement, the courts are no more than vanity.  It is a neglected field though:  those concerned with civil justice do not want to look at the sordid business of actually laying hands on a man and hurling him from his erstwhile home. That is what the whole procedure is there for though: to authorise the landlord to get his own property back. Without that step, all the bewigged judges, clerks, staff and lawyers are pointless.

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Books

Proud man, Drest in a little brief authority

There is nothing I can ever say on any subject of import concerning mankind which Shakespeare has not said better. All the clashing claims of authority, from state or PC establishment are shamed before his observations, so I can hardly do better than to read to them a passage which has illustrated its own wisdom this last week.

O, it is excellent
To have a giant’s strength; but it is tyrannous To use it like a giant.

. . .

Could great men thunder
As Jove himself does, Jove would ne’er be quiet,
For every pelting, petty officer
Would use his heaven for thunder;
Nothing but thunder! Merciful Heaven,
Thou rather with thy sharp and sulphurous bolt
Split’st the unwedgeable and gnarled oak
Than the soft myrtle: but man, proud man,
Drest in a little brief authority,
Most ignorant of what he’s most assured,
His glassy essence, like an angry ape,
Plays such fantastic tricks before high heaven
As make the angels weep; who, with our spleens,
Would all themselves laugh mortal.

Measure for Measure, Act II Scene II

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Books