Have we started to win?

The new, revamped Board of Trade has a star name – Tony Abbott no less, former Prime Minister of Australia. His appointment was widely welcomed and his technical nationality was never an issue: the Old Commonwealth is a block of peoples not only not foreign to each other but seeming somewhat bewildered to be considered separate nations, and it outlines that Australians, Canadians and New Zealanders as as home here as on the shores where they grew to manhood. Mr Abbott will do well in his new role.

His position was threatened by a blast from the left which in past years has proven deadly to any candidate for office. The left-wing attack-mob did not get their scalp this time.  Once they get their hooks into you, you’re a dead pigeon, so we have been led to believe, but not this time.  Boris has proven more robust in protecting his appointments from the mob. That is an encouraging development. Theresa May threw Toby Young and even Sir Roger Scruton to the dogs at the whiff of a Twitterstorm in displays of contemptible weakness: Boris Johnson (who has himself been the focus of many such attacks) has started to turn the tide.

Interestingly, the artificial fuss over Tony Abbott distracted attention from the other appointments of advisers to the Board of Trade, from an international field, and so protected those who are less inured to such attacks.

The New Zealand government has privately expressed frustration at the inexperience of the British negotiators trying to create a free trade agreement with New Zealand, and that is no surprise as before Brexit there was no need to develop the talent and experience. Now there is now a team lined up who have that experience and they are to be unleashed upon the world. Who’s on first I cannot say, but Abbot’s name is the most prominent and the best at opening doors.

It is an impressive line-up. The Remoaners would have had a fit at Daniel Hannan being there, had they not been involved in dirty tactics against Tony Abbot, but as Mr Hannan is the founding President of the  Initiative for Free Trade, he has the contacts to bring to bear on the enemy. In fact apart from the ex officio ministers, they are all heavyweights. It would not have happened if Boris Johnson had given way.

We may be winning then, or making the first steps.

The Culture War is not about culture at heart: it is about power. As Hobbes observed, in the first place, I put for a generall inclination of all mankind, a perpetuall and restlesse desire of Power after power. The left-wingers, cultural Marxists, Wokeists, call them what you will, have hitherto enjoyed power. Elections and Parliament mean nothing if feigned outrage and feigned offence force the government to your will, and by the time Mrs May’s ministry had run its course, they were in undisputed control, removing public servants from office at a whim. Then there was the election in December 2019, and it might not have made any difference to the structure of power, and no election for an age has done. Something changed though. The was cultural divide in the nation was made, by Brexit into a yawning chasm, and the revenge of the spurned was seen in the fall of the Red Wall. This was a mandate for change. Boris returned to Number 10 with Dominic Cummings at his side, now with the mandate and majority and manpower to make changes.

The new extremism amongst Cultural Marxists is to be expected; they are outraged that their power has been challenged. The counter-revolution against them is underway.

There has been no change in the Twittermob. People are still persecuted and sacked for transgressing the rules set by extremists. The police still make political distinctions between different groups of rioters, shops still make customers feel unwelcome with lurid rainbow flag displays, and television reporters have still not realised that “far right” does not mean what they have been telling people it does. However that all now though seems to stop at the doors of Whitehall. There is pressure on the Civil Service to align with the programme, and there is even a Tory as Director General of the BBC. There is now open talk of a push back, of fighting the Culture War. How, has not been explained. On our side, the culturally conservative side, we play with a straight bat out of principle, and to avoid accusations of tyranny – the irony is not lost. There are lessons to learn from Hobbes about all this: mankind has not changed in four hundred years, nor indeed in forty thousand.

For now, there is robustness in Whitehall. This may spread. The momentum cannot stop though, because the other side will not stop. The success in giving Tony Abbott the position he has, not as a political gesture but because he is a bonzer pick to do the job, is a good sign for the future.

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The UK Internal Market consultation

Little heralded perhaps, but important, the Department for Business, Energy and Industrial Strategy has issued a White Paper entitled “UK Internal Market” and the need for it shows how far we have come, backwards mainly that this is an attempt to fix it.

It is a symptom of the regulatory state that we even have to consider the subjects in the White Paper, but as our commercial life is mired in bureaucracy and unlikely to crawl out any time soon, the effect of that bureaucracy to impede business is being looked at, in the context of a possible fragmentation of rule-making that could stop seamless operations of business across the United Kingdom, as has been enjoyed since 1707, and 1801.

Britain left the European Union, thank goodness, on 31 January this year, and the co-ordinating rules of its Single Market are dropping away. At the same time, those political parties which campaigned to keep powers in Brussels, now demand that those powers be handed to the devolved authorities, so they can make a right hash of it, but more to the point, the paper raises the point that a divergence of standards and licensing regimes would lead to companies’ having to produce different goods or labelling in different parts of the country, or limit their business to one corner of the land.

The worst aspect politically is that devolved authorities, being controlled by hostile opposition parties, will be driven to differ from the rules in England for political reasons and despite the interests of those affected by the rules – businesses and consumers. The paper only hints at that, but we can read between the lines.

It is a paper of 105 pages, largely because it constantly repeats itself, but that should not be harsh criticism, because after the many opening pages of fluff (which I would have written very differently), it comes to the main points for action: a non-discrimination principle and continual input by affected businesses. Both are excellent principles. Both should be used not only to squash future divergent burdens but also existing ones.

Four questions are raised, summarised as:

  1. Should the government seek to mitigate against both ‘direct’ and ‘indirect’ discrimination in areas which affect the provision of goods and services?
  2. What areas do you think should be covered by non-discrimination but not mutual recognition?
  3. What would be the most effective way of implementing the monitoring of the Internal Market and business and consumer engagement and should particular aspects be delivered through existing vehicles or through bespoke arrangements?
  4. How should the Government best ensure that these functions are carried out independently and are fully representative of the interests of businesses and consumers across the whole of the UK?

They are good questions. The fact that these questions even have to be asked is worrying, but they do.

The questions need input from those who understand their own businesses, and by all accounts the government will actually listen to them (which will be a Cummingsesque shock to the Civil Service, if they do not find a way to frustrate it). The White Paper indeed contains examples and quotes from businesses showing that a good consultation has already begun.

There is little time to respond, with observations and even ideas. This should be shaped by the reality of business – I was going to write “and not ideology”, but that is impossible.

These subjects may have to be the subject of more articles on this site, adding to those previously published.

Link to the White Paper

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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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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 members overwhelmingly believe in the system that got them elected. 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 series of measures to win over opinion, rebalancing power away from the government to the people, and the warm glow in opinion permeated through his period in office in spite of all the other things he did that centralised power more than had been seen in a generation. 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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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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