Month: June 2022

 Part 2 : What Is Happening to Principles of Public Morality?

“One of the most tainted jobs in public life“

Jessica Elgot in The Guardian, 16 June 2022, on ethics advisers.

To begin at the beginning, let’s return to the issues raised in Part 1 of this blog by the resignations of no less than three ethics advisers over the policing of the Ministerial Code. This Code sets out the standards of public life that Ministers (including the Prime Minister) promise to observe, with the expectation that serious breaches would entail ministerial resignation. There is a similar Code of Conduct for MPs, members of the House of Lords, and civil servants; oversight of the system is the responsibility of an independent Committee on Public Standards, which is not a formal regulator and reports to the Prime Minister.

The Prime Minister also appoints an Independent Adviser on the Ministerial Code. There is currently nobody in this post, since Lord Geidt has now resigned after a disagreement with the Prime Minister, much  as his predecessor Alex Allan had done over infringements of the Code by the Home Secretary, Priti Patel. Another resignation along with Geidt’s came from MP Jonathan Penrose, appointed by Johnson to be his ‘anti-corruption tsar’ (a somewhat risible title, with its echoes of one of the most authoritarian systems of rule in European history). Geidt and Penrose both referred to the way in which the Prime Minister appeared to be excluded from judgements under the Code: ‘at the moment’ said Penrose ‘the Prime Minister appears to have an exception, and that means there is no public advice for parliament and everyone else to see, which isn’t fair at all’. Geidt is quoted by an anonymous source as saying that ‘ he was sick of being lied to’.

It’s worth noting the public service record of these people who are at odds with Johnson. Alex Allan was a very senior and experienced civil servant, a senior intelligence chief, and Principal Private Secretary to two former PMs, Tony Blair and David Cameron. Lord Geidt, another civil servant, had held the prestigious position of Private Secretary to the Queen. Penrose had been a former Tory minister. Johnson had also offended another watchdog, Jonathan Evans, former M15 Chief and Chair of the Committee on Public Standards, by not accepting in full a range of reforms recommended by the Committee in November 2021, Upholding Standards in Public Life, including the need for greater independence in the regulation of the Ministerial Code.

These public servants appear to inhabit a different world from that occupied by a Prime Minister seemingly oblivious to moral standards in public office, or indeed moral principles of any kind. To lose one ethics adviser might seem unfortunate: to lose three suggests both incompetence, and more alarmingly, complete indifference. In his resignation letter Lord Geidt accused the PM of putting him in an ‘impossible and odious position’ after asking him to give advice on ‘a deliberate and purposeful breach of the ministerial code’ in pursuit of a plan to ‘risk breaking international law’; ‘the idea that a Prime Minister might to any degree be in the business of deliberately breaching his own Code is an affront’.

 Very possibly, Johnson may leave to wither on the vine a set of ethical controls which he finds deeply unpalatable and a constant source of political embarrassment. What is worrying here is the evidence, also clearly demonstrated elsewhere, of a darker and more authoritarian intention to evade and undermine the rule of law. He and his Cabinet also seem intent on weakening institutions regarded in the past as central pillars of our system of governance, whether formal institutions like the law courts and local government, or areas of what is often called ‘soft power’, like the BBC and the Universities. It’s truly ironic that we now have a ‘Conservative’ government more committed to destruction than conservation, more inclined towards a set of culture wars intended to distract and divide our nation, rather than cultivate social harmony and political unity. Nor do our present set of Government ministers seem much interested in the pursuit of effective and efficient public policy: as an Observer leader commented (26 June 2022) ‘new policy announcements take the form of unworkable interventions that cause great harm for the sake of capturing newspaper headlines’.

Law-making and Law-breaking

The Partygate furore exploded when the Prime Minister (among many others working in his Downing Street office) was found by a police investigation to have committed a criminal offence, by breaking a law that he had himself put in place and promoted. The ethical question arising was whether such a conviction (the first of a serving Prime Minister in British history) involved a breach of the Ministerial Code. As we know, Johnson, acting as judge and jury, declared that it did not, then changed the ethical rules anyway. There remains a further test for him though, when he will have to appear before the parliamentary Select Committee on Privileges to answer on the equally serious question of whether he lied to, or misled Parliament about these infractions of the law. An adverse judgement by this cross-party Committee should in principle lead to the Prime Minister’s resignation. But it has been observed more than once recently that Boris Johnson would have to be dragged kicking and screaming from 10 Downing Street whatever the formal verdict reached by the Committee, which will not appear before the autumn.

This is not the only example of lawbreaking by lawmakers to be considered, for these issues arise in relation both to a new Home Office plan to deport asylum seekers to Rwanda, and proposed changes in legislation governing the Brexit agreement with the EU, also affecting quite long standing provisions on human rights.

Deporting Asylum Seekers to Rwanda

This recently conceived plan by the Home Secretary, Priti Patel, is a response to a significant increase in the numbers of asylum seekers attempting to obtain refugee status in the UK. Essentially, after surviving terrible ordeals in war zones like Afghanistan and Syria, then a dangerous boat journey across the Channel, asylum seekers will officially, without further ado, be deported by plane to Rwanda in Central Africa.  This scheme, funded by the UK taxpayer, transfers responsibility (and cash) for the asylum seekers to the Rwandan government, a government with a notoriously poor human rights record, and a ludicrous destination for people from outside the African continent. This deportation plan has been criticised as a breach of the international laws on the proper treatment of asylum seekers, and is hugely controversial here in the UK. See below for examples

“appalling”

Prince Charles, heir to the throne

“this immoral policy shames Britain…the shame is our own, because our Christian heritage should inspire us to treat asylum seekers with compassion, fairness and justice, as we have for centuries”

the Archbishop of Canterbury and the entire senior leadership of the Church of England, who sit in the House of Lords

“government by gimmick”

Angela Rayner, Deputy Leader of Opposition, House of Commons

“Your children study the rise of Hitler in history and are asked how the people of 30s Germany allowed their country to slide into fascism. Well, now we can tell them. Kids, look out of the classroom window. It was like this…” 

Stewart Lee, Observer, 20 June 2022

“This tells us much about the British Government’s colonial and insulting view of Africa, as a place that is no better than a dumping ground for things – in this case people – it considers a problem”

Open letter from British cultural celebrities to Meeting of Commonwealth Leaders June 2022.
Signatories include Olivia Colman, David Harewood, Emma Thompson, Lemn Sissay and Benjamin Zephaniah

There were immediate legal challenges by refugee charities and human rights organisations, and the European Court on Human Rights (ECHR) intervened at the last minute to halt the planned first deportation plane (which reportedly has cost the British taxpayer £500,000). This interim judgement ultimately meant that all planned deportations will be deferred until a full consideration of the policy in the UK High Court. The ECHR polices the European Convention on Human Rights, and its judgements are binding on all member states of the Council of Europe, including the UK, (this is not an EU Court).

Furious Conservative MPs, egged on by the usual tabloid suspects like the Daily Mail and the Sun, demanded  that the UK should pull out of the European Convention on Human Rights, even though the UK had been the first to ratify it in 1951. There is a significant link here to the Labour Government’s Human Rights Act of 1998, which allows the rights enshrined in the Convention to be enforced in UK courts. Even more significant is that the ECHR guarantees human rights under the Good Friday Agreement in Northern Ireland.

The Johnson administration’s knee-jerk response was instantaneous: Dominic Raab, Justice Secretary and Deputy Prime Minister, announced a new Bill of Rights to replace the 1998 Human Rights Act. Raab says that the new law will allow the government to ignore ECHR injunctions and make it easier to remove asylum seekers to Rwanda. Considerable opposition to these proposals is expected, especially from the House of Lords. And Amnesty International (UK)’s Chief Executive Sacha Deshmukh lambasted the UK government’s politicking on this: ‘This is not about tinkering with rights, it’s about removing them. From the Hillsborough disaster, to the right for a proper Covid inquiry, to the right to challenge the way police investigate endemic violence against women, the Human Rights Act is the cornerstone of people power in this country. It’s no coincidence that the very politicians it holds to account want to see it fatally weakened.’

Meanwhile, England’s top lawyer, Chair of the Bar Council, accused the PM of ‘bullying’ the lawyers representing asylum seekers by claiming that they were ‘abetting the work of criminal gangs’. This attempt to demonise lawyers who are doing the job they are trained to do and expected to undertake without prejudice, is another political weapon in the Johnson government’s calculated assault on one of the essential constituents of the rule of law. The Guardian leader on 23 June 2022 judged ‘The dilution of fundamental rights and their subordination to ministerial opinion is a significant constitutional change. It is also a retrograde step for democracy’

Breaking and degrading international law: The Northern Ireland Protocol

The Johnson government’s machinations over post-Brexit affairs demonstrate an irresponsible  attitude to international law. They seem almost to take pride in this characteristic, one which would have appalled traditional Conservative administrations in the past. Moreover, they appear to have no compunction in seeking to overturn international agreements which they have themselves negotiated and signed. The clearest example is that part of the Brexit agreement with the EU known as the Northern Ireland Protocol. This part of the EU-UK withdrawal agreement was accepted  by Johnson because he knew it was the only way to ‘get Brexit done’. The Protocol was agreed with the EU in 2019 and came into force at the beginning of 2021. It was necessary because  Northern Ireland was the only part of the UK with a border with the EU, i.e. the Republic of Ireland. Instead of goods being checked at the formal land border, they are checked at Northern Ireland ports, then can enter the Republic of Ireland.

When the inevitable regulatory costs of this began to make themselves felt, Johnson and his EU negotiator David Frost quickly denounced the protocol they had agreed to, and said that if the EU would not renegotiate it, they would renege on this part of the withdrawal. After much bluster and unwillingness to respond to EU offers of renegotiation on admitted problems revealed during implementation of the Protocol, Johnson and the Foreign Secretary Liz Truss have now abruptly carried out their threats to introduce new legislation to override parts of the Protocol,  bringing forward a new Parliamentary Bill to do this. The Irish Taoiseach, Micheal Martin, said that this move amounted to ‘economic vandalism…unilateralism of the worst kind’. David Lammy, Labour’s present shadow Foreign Secretary, rejected the Bill as ‘a charter for lawlessness, that serves the interests of those who want to weaken the rule of law.’

My own go-to specialist on Northern Ireland is Fintan O’Toole, an excellent and highly respected specialist in Irish affairs. On this issue he mocks Johnson’s cavalier ways with the truth: ‘This Bill is not, as Boris Johnson claims, “a bureaucratic change that needed to be made.” Its purpose is to invent an alternative reality in which Johnson himself did not create the protocol, did not claim of it that “there will be no checks on goods going from GB to NI or NI to GB”, did not call it “a good arrangement”, and did not insist that “it is fully compatible with the Good Friday Agreement”. O’Toole’s trenchant conclusion: ‘The Bill, in effect, makes almost every aspect of a legal agreement that is the cornerstone of the whole Brexit withdrawal agreement subject to the whims of British ministers. It gives them the powers to nullify the vast bulk of the Northern Ireland clauses of that agreement whenever they like’. (Article in The Guardian 15 June 2022). We should note here that Johnson is responding in part to divisions in Northern Ireland politics, with the Democratic Unionists (DUP) determined to reject the Protocol; yet the majority of those recently elected to Stormont (the NI legislature) are in favour of the Protocol and its link to the Good Friday Agreement.

Johnson has always been something of a bull in the fragile china shop of Northern Irish politics, and is now flailing about in a manner meant to distract us all from the various political disasters he is currently involved in (Partygate, ethics institutions, two lost by-elections, public sector services strikes, the cost of living crisis, increasing Brexit problems.)  It is typical that at such moments, occurring now all too frequently,  he and his craven ministers rush in with new pieces of highly controversial lawmaking, clearly written hastily on the back of one of his party invitations. No one has been consulted on these two pieces of game changing constitutional law (human rights, the NI Protocol), no concerns are registered about the likely responses of  other players in this political game, such as the EU, or the US, or those most likely to be affected, like Northern Ireland’s political representatives, or both British and international groups concerned with human rights. The only solace is that Johnson and his Cabinet are quite incapable of any effective implementation of his many and often mutually contradictory proposals. Unhappily, his playing fast and loose with moral principles and the norms of international law are making the UK a source of contempt and disbelief the world over.

And I have not even glanced yet at the many accusations of misuse and abuse of public resources sometimes examined under the headings sleaze and chumocracy. I prefer the more accurate term ‘corruption‘ and will explore these issues in my next post.

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I have spent sixty years, first working as a civil servant in British Government, then teaching and writing about it as a university academic. Trained as a historian, I was always keen to locate the strengths and weaknesses of British governance in a historical context, the better to judge how changes and reforms took place over periods of time. Generally I held the optimistic assumption that over time, things would progressively improve in the ways in which we governed ourselves, that the strong values of democratic control (though only won relatively recently) would be realised, buttressed, and protected by long standing principles of the rule of law, underpinning a universally admired ‘British Constitution’.

As I look at the ways in which this Constitution has been traduced in the past decade, I now feel as though I had got all this badly wrong; or perhaps alternatively, that our British political leadership in the twenty-first century has got all this badly wrong. The constitutional safeguards that seemed to work well enough in the recent past now seem flawed and disregarded, the political system itself damaged and dysfunctional. As a result, the majority of British citizens would put politicians at the bottom of the list of people they feel able to trust. Many think that British government is now more corrupt than it has ever been in their lifetimes. Moreover, sadly, there is plenty of evidence to support that belief.

Old Corruption

‘Once upon a time, my dears…’  we thought we knew what corruption was, and how we got rid of it. It was a set of undesirable social and political practices in the past that broadly involved:

• the ownership and control of parliamentary seats and constituencies, and related elections, by an aristocratic landed class (including the monarchy). This patronage enabled a ruling class to command political power and influence, and so control the resources of the state, privileges not available to other social classes. An excellent example of this is my original Yorkshire school town of Knaresborough. In the middle of the nineteenth century this small market town had 287 voters who sent two members to Parliament, the same number as the nearby industrial city of Leeds, with 9000 voters and a population of some 400,000. The Knaresborough members were nominated in the Whig (later Liberal) interest by the aristocratic Duke of Devonshire. Elections were often close enough, and high levels of expenditure were common: in Knaresborough in 1807 election expenses were £528, free drinks accounting for £140 of this. At least such elections were contested, not the case in so called ‘rotten boroughs’ which might not even be inhabited except by a few sheep, yet could return a Member to Parliament (until abolished in 1832)

• the purchase and or control of both major and minor offices in state administration, so that aristocratic patronage included the gift of these offices, including military commissions, to family, friends, and supporters

• the control of related privileges, sinecures, and honours such as peerages and knighthoods

• the control of many trading and commercial contracts and licenses, and the profits to be derived from these

• these practices extended to British imperial possessions, especially in India, making fortunes for many members of the upper classes, and a source of immense patronage

It took two ‘revolutions’, the Industrial Revolution and the Agricultural Revolution, to erode and finally eliminate ‘Old Corruption’. These economic and social changes brought a long series of political reforms which gradually undermined the control and power of the landed aristocracy. Electoral reforms from 1832 onwards had to be fought for by both the rising commercial middle classes, then by the industrial and rural working classes. The First World War changed the political landscape again, with the final elements of universal suffrage (1918) and the full admission of women into the electoral fold (1928). The first part of the twentieth century saw a marked decline of the older landed classes alongside the steady rise of both a propertied middle class, and a trades union based working class.

The shock post- Second World War victory of the working class based Labour Party in 1945 seemed to herald a new world in which the old upper classes would lose their stranglehold on the state and its resources, while elements of the rising middle class would accept something that looked like a social contract based on progressive taxation and the acceptance of a universal welfare state. This in principle created a much more broadly based system of constitutional governance, in which the incidence of corruption, and the opportunities for overbearing class privilege were much reduced. Individual and collective legal rights were strengthened, giving due weight to values of equality and fairness. The broadening of educational opportunities, and establishment of recruitment by merit, reduced the possibilities for favouritism and nepotism in employment, particularly in state institutions. Old Corruption seemed to be what it sounded like: an old and discredited system, now replaced by a modern and efficient form of governance, based on a set of broadly shared national values.

But from the vantage point of 2022, some seven decades on, that last sentence sounds like pure nonsense. Respected critics now argue that significant elements of ‘Old Corruption’ still persist in the 21^st century in forms that we might describe as ‘New Corruption’. I’ll consider this claim through five key questions, which I’ll seek to answer in this and four further posts.

1   Is the British Constitution Still Fit For Purpose?

 2   Do We Follow Systematic Principles of Public Morality?

 3   Do We Have A Meritocracy?

 4   Have Our Public Services Been Politicised?

 5  What Is To Be Done?

Part 1 Is The British Constitution Fit For Purpose?

It depends what you mean…

Professor Joad, the once famous but now forgotten 1930s-50s socialist philosopher (but not forgotten by me, riveted as I am by the unlikely fact that he was once expelled from the extremely respectable Fabian Society for philandering) would have said: “it all depends on what you mean by democracy”.  Likewise, it all depends on what you mean by the British Constitution, often described as “unwritten”. This is not completely the case, since, for example, significant electoral arrangements, forms of local and sub-national governance, and several types of human rights, are set out in parliamentary legislation, which provide a framework of clearly formulated and testable public law. But there are certain unwritten, yet essential, parts termed ‘conventions’, practices that might have no legislative basis, but reflect shared constitutional values generally agreed on by all participants in the political system. For example, the crucial office of Prime Minister developed as a convention; and the doctrine of individual ministerial responsibility, under which Ministers would be expected to resign if they made a complete mess of things, was an accepted convention until very recently, the last such being Amber Rudd in 2018.  At the time of writing there is a convention that Ministers (including in principle the Prime Minister) would resign if found to have lied to, or knowingly misled Parliament.

Constitutional Conventions

Conventions have always been regarded as a considerable strength of the British Constitution because they enabled a process of necessary political and constitutional changes and reforms to take place without long drawn out and politically divisive confrontations. In this manner, it is argued, Britain avoids the constitutional straitjackets which prevented modernising changes in, say, the USA, or France, or India; and British citizens believe that they can rely on the protections of a British constitutional system that is universally respected and admired. Peter Hennessy, a foremost and highly respected historian of British politics, has termed this ‘the good chap theory of government’. Such a system depends heavily on trust (that honourable politicians will honour the conventions, and agree together on any changes to them), and on the integrity of politicians working within the system. But, as a Guardian reader pointed out recently: ‘a rogue Prime Minister, lacking integrity and with a servile majority in the Commons can alter this uncodified constitution to his own advantage… accentuating the trend to an unaccountable elective dictatorship.’ (R. Boffy: letter to The Guardian, 31 May 2022).

A key issue in this respect is the existence of clearly stated formal standards in public life (overseen by The Committee on Standards in Public Life). These were introduced by John Major’s administration in the mid-1990s after a series of embarrassing cases of Members of Parliament, notably Neil Hamilton, selling (for cash) various forms of political influence. These standards are also set out in the Ministerial Code, and breaches of them are policed by a specially appointed ethics adviser. A previous adviser, Sir Alex Allan, found the Home Secretary, Priti Patel, guilty of breaching the Ministerial Code in bullying her civil service staff. She refused to resign, and the PM, Boris Johnson, refused to sack her. So it was the Independent Adviser who felt obliged to resign. His successor, Lord Geidt, has in his Annual Report (31 May 2022) claimed that he is powerless to challenge the Prime Minister about any breaches the Prime Minister might make. Specifically, he cites the Prime Minister having broken the law and having been fined for this by the police, (the so-called Partygate scandal). But it is the Prime Minister himself who is the sole arbiter of the Code, so can act as judge and jury in his own case. Astonishingly, it is reported that Johnson is now busy rewriting the Code himself, and tellingly, has deleted all references in his Foreword to the need for probity, integrity, and honesty in public life.

This willingness to avoid any ethical basis for his own decisions and actions, or proper accountability for them, has been described as ‘an affront to democracy’. An Observer columnist, Andrew Rawnsley, puts it more bluntly, declaring in relation to Partygate, and the scandal of lawmakers being the principal lawbreakers in relation to Covid19 rules, that Boris Johnson ‘has vomited over standards in public life’ (The Observer, 5 June 2022) Unsurprisingly, Lord Geidt has now resigned. So too has Johnson’s own nominated Anti-Corruption Champion, Conservative MP Jonathan Penrose. As I write this, Johnson has most unconvincingly won a Vote of Confidence on his leadership held by all Conservative MPs, just over 40% expressing no confidence in their party’s leader. Both Johnson as PM and his Conservative Government are now badly damaged, a leaking ship of state that can only continue to drift and finally sink.

The Attack on Parliament

Arguably a more serious affront to democracy was the attempt by Johnson’s government in 2019 to suspend the working of Parliament which he wanted to prevent from blocking his secret preparations for a no-deal Brexit. Defeated on successive occasions in the House of Commons, Johnson attempted to shut down Parliament for five weeks. The Speaker, John Bercow, described this as a ‘constitutional outrage’; the First Minister of Scotland, Nicola Sturgeon, characterised Johnson’s actions as those of ‘a tinpot dictator’; meanwhile several thousand demonstrated outside Parliament against this suspension.

The prorogation received a legal challenge (Gina Miller v Prime Minister) and was taken for final decision to the Supreme Court. The Court’s judgement was that the Prime Minister’s advice to the Queen was ‘outside his powers’; that prorogation would have the effect of frustrating Parliament’s constitutional functions, and would have an ‘extreme effect on the fundamentals of democracy.’ Moreover, the Government had ‘provided no adequate justifications for its actions’. This Prorogation was declared to be unlawful, and therefore null and void. The question as to whether Johnson had misled the Queen was neatly avoided.

Subsequently Johnson said that the Supreme Court was wrong to pronounce on a political question, while Conservative Cabinet Minister Jacob Rees-Mogg described the judgement as a ‘constitutional coup’. On the Conservative side of the political fence, judges were seen not as interpreters and guardians of the law, but as ‘enemies of the people’; this description had been levelled by the tabloid Daily Mail in relation to another  Gina Miller challenge to the executive power. In a significant constitutional judgement, the Supreme Court had ruled in January 2017, by an 8-3 majority of all 11 Justices, that the British Government did not have the authority to exit the EU without doing so through parliamentary legislation. 

Bolstered by the electoral victory in December 2019 that gave him a strong parliamentary majority, new Prime Minister Johnson was able to meet this requirement, finally taking the UK out of the EU. But the Conservative Government has not forgotten or forgiven, and has now declared the intention to limit the powers of the judiciary to make what are described as political interventions, not legal matters. In effect, this attempts to push back hard against the constitutional principle declared in the Supreme Court judgement on prorogation: that ‘the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries’. An expert on constitutional law suggests ‘this reflects the principle of the rule of law, which dates back to Magna Carta and towards the birth of civilised, democratic society’ (J. Stanton: blogs.lse.ac.uk/politicsandpolicy/r-miller-v-prime-minister-2019/ ). Ferdinand Mount, a leading journalist and former Tory policy adviser adds ‘[Johnson] claims that this is to protect judges from being drawn into politics, but in reality it is to protect politicians from being drawn into the courts.’ ( F. Mount: ‘Ruthless and Truthless’ London Review of Books, 6 May 2021).

Clearly there is a blurred line here which in the current increasingly divisive climate will need to be clarified, and then protected from increasingly anti-democratic politicians. In my view it is over-mighty politicians who are most likely to be enemies of the people, and we need both clearer constitutional protections against them, and judges ready to police such protections. This tends to push us towards the case for a written constitution, and a fundamental reworking of our failing political and governmental institutions. This will be a recurring theme in this mini-series of posts.

Part 2 will consider the question : Do We Have A Meritocracy?

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