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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The work begins: constitutional reform

The Constitution, Democracy and Rights Commission will be established probably this year.  Nothing in the Conservative Manifesto suggested radical changes in the constitution – it is, after all, a conservative manifesto – but Parliament would be failing in its duty were it not to knock a few blocks back into line where they have become dislodged.

Even a majority of 80 is not enough to overturn the fundamental elements even if that were tempting. The changes proposed are barely even changes. This reality has not stopped incontinent rages on social media.

The Commission from the first day must handle its work sensitively. The objective has been set out up front:  rebalancing our understood constitutional norms, strengthening the rule of law and strengthening the operation of democracy.  Momentum-type commentators like Owen Jones and his endless identikit clones are prophesying instead the destruction of democratic norms and the rule of law, rather like a socialist state I suppose:  this accusation must be met by such demonstrable practical contradiction that the likes of Jones are humiliated.

The motto for any Conservative with a position of strong political power should be one from Shakespeare:  “Oh it is marvellous to have a giant’s strength; but it is tyrannous to use it as a giant”.

The essential duty is to do the right thing.  Politically though it is not enough to do right – the whole process must be handled in an open manner with clear, unarguable objectives and all decisions must be traced to those objectives.  Left-wing commentators will claim credit for preventing a destruction of democratic norms (which is a lovely irony), so politically the derivation of the result must appear as a logical outcome of principles.

There is a trust issue.  It is legitimate for commentators to be wary of constitutional changes when there is a government with enough strength in the Commons to drive through almost anything. Trust must be won by demonstrating trustworthiness.

All this will not be enough to quieten shouty people on Twitter as reason does not rule in that sphere.  Lack of credibility does not stop people getting on Sky News to talk of their fantasies of tyranny. (In America, where not a jot nor tittle of the Constitution can be changed without 34 bickering states and Congress agreeing every word, there are Twitter warriors sincerely telling their followers that the President can cancel elections and rule for life.)  The answer to lunacy is lucidity.

Nothing grand will come of this – Parliament can do anything to the constitution, but  Dire warnings are welcome, but thy must be realistic to be credible, and so we start with what we know.

There will be popular and unpopular decisions to be made, and timing these will be crucial.  It is tempting to make unpopular choices at the beginning and finish the rest of the term with popular ones to boost poll ratings, but government does not work like that, and voters are not so daft either.  Tony Blair announced from the beginning of his time a serious of measures to win over opinion, and the warm glow in opinion permeated through his period in office in spite of all the other things he did. Establishing goodwill and trust early is valuable.

The problem areas for any government determined on doing the right thing are measures which do good but sound bad. Tax cuts for the wealthy may fall into that sphere. The most relentless drain on poll-ratings may be cuts and virtual cuts (‘virtual cuts’ being where money was spent as an exceptional item one year and is not available the next, or where the same money is switched to different priorities). We know this from day-to-day policy, that the right decision looks wrong, and this will apply throughout this parliament, sapping at support and trust. In that context of contested reforms and mistrusted motive, constitutional reform must be handled very delicately and with openness, but not at the cost of failing to do the right thing.

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Books

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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Books

The year begins – 2020

There is no time for our politicians, in any party, to sit back and enjoy the ride. The work began the moment they set foot in Westminster, and the time to the next General Election is ticking away; presumably 1 May 2024.

There are few unavoidable fixtures before the election.

It starts with Brexit Day, finally, on 31 January 2020.  This is then followed by negotiations to reach a free trade agreement, or the essential parts of one, based on the Political Declaration, before 31 December 2020.

The next is the Budget each year;

The local elections, and in particular the London mayoral election on 7 May 2020 (in which the egregious Sadiq Khan is expected to walk home in spite of his having been worse that useless in office).

The Olympic games in Tokyo in 2020: not political, but a national morale-boost, usually.

The creation of the Constitution, Democracy and Rights Commission is likely to happen in 2020.

Then the American Presidential Election on 3 November 2020 – which will determine the course of negotiations for free trade across the ocean, and by indirect influence set a tone for political debate.

First thing though: Brexit. Consummating the event must not be the end of the Brexit campaign as the following months and years will be filled with claim and counterclaim about the effect it is having on the economy, and the ‘Rejoiners’ must not be the only voice heard.  The statistics must therefore be available and up front.

That same spirit of openness and demonstrable achievement must permeate through the years ahead. The new blue north is not a given in four and half years’ time, and the generation too young to know the reality of socialism will continue to fill the electorate from the bottom. A great deal of trust must be built up in spite of a cynical age.

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Books

You’re on your way now, Bill

After three and a half years, it is hard to believe we are finally (almost) there. A joyous Brexmas to us all: the Withdrawal Agreement Bill is through the Commons; and woe betide the Lords should they try to stall it, after they rushed the Surrender Bill through.

When the first Bill was presented during the Zombie Parliament, I wrote a frank if hurried commentary. The one newly passed by the Commons today is almost identical, with some telling changes.

Much fuss has been made about the loss of a clause headed “Protection for workers’ rights”, but the heading of the lost clause is misleading: it had no protection of any rights: all it was going to do was order Ministers to make a statement about it in every new relevant Bill, which was a ridiculous burden with no legal effect. The fuss about it is disingenuous or mistaken. Additional protection in the area is unnecessary: employment law is mostly enshrined in primary legislation with no reference to European rules and so cannot be changed without an Act of Parliament. In those areas which are affected, such as the ‘TUPE’ regulation, it may in fact need technical adjustment to change references to the European Union and European Economic Area, and where limits are defined in euros.

The clause actually protecting foreign workers’ rights remains unchanged.

The headline change concerns extending the Transition Period. The Withdrawal Agreement provides for an agreed extension and the original bill had clauses on that, but as I wrote a few of days ago, the possibility of an extension makes that extension inevitable, and therefore the new Bill forbids any extension. The Europeans’ negotiators may thing they can override that, but it is not Theresa May in charge any more nor her negotiators (if they could be described as that) but Boris Johnson, who is a very different character, as they have seen. Banning extension is necessary.

A second big change is one I begged for before more than once: the clauses that would have tied the Government to clearing every little step of the negotiations with the Commons have gone. Thank goodness: this part would have made impossible what needs to be a swift, nimble-footed negotiation.

It was noted before that there is an extraordinary Henry VIII power at one point, namely power to modify “any provision made by or under an
enactment (including this Act)“. That is only in an administrative Schedule, not the body f the Act, but the wording looks unprincipled. It appears in Schedule 2 which constitutes the Independent Monitoring Authority for the Citizens’ Rights Agreements; once in Paragraph 39(7) and once in Paragraph 40(3), in both cases to allow the transfer of functions from or the abolition of the quango. In that strictly limited context with a strictly limited scope it is not a worry. It is extraordinary though in its wording, for an Act to grant power for itself to be changed, and I hope its appearance here does not become a precedent.

Finally, the Bill still contains a major constitutional error in Clause 39: it (nominally) says: “It is recognised that the Parliament of the United Kingdom is sovereign.” No it is not. If “Parliament” is here an abbreviation for “the Queen and Parliament together” then it is correct. If “sovereign” is a loose term, then they can get away with it, but Parliament, meaning the two Houses, is not sovereign and never has been. One hopes that a throwaway line in a narrow, functional Act will not be taken as changing a most fundamental part of the Constitution, but with judges these days you cannot be sure.

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