Skip to content

Independent Review of Administrative Law

Evidence submission by David Smith

Full details of this review can be found at https://www.gov.uk/government/groups/independent-review-of-administrative-law?fbclid=IwAR2iMPbZZi_vIUul9emLFIQCEuxL3DQYjWwy_XmjEDLCRKEdZV7NwDyiVL8

This review was foreshadowed in the Conservative Party Manifesto. On 31st July the panel was announced, but it was not until 7th Sept [1]that further details and the call for evidence was published, ‘rather quietly’. Comments and evidence are required by midday on 19th of October 2020,

I am not a lawyer and so I am unable to address most of the detailed questions posed. However there a few points of principle that will concern the public.

It seems to me that the manifesto commitment, far from being an honest attempt to rationalise the law on Judicial Review, was a reaction to the decision of the Supreme Court to rule the prorogation of September/October 2019 unlawful.

I note that the secretariat is provided by the Ministry of Justice. Secretariats can influence matters in subtle but important ways and so should be as independent as possible. Civil servants in practice find it very difficult to go against the wishes of the relevant minister. Formal powers of direction are almost never sought, let alone given. A more independent secretariat could and should have been appointed.

Given the extent of the incompetence, corruption and mendacity of the current government, any weakening of the power of the courts to hold government to account would be very dangerous and would represent a significant move towards dictatorship. In fact a sounder basis for such powers is needed given the difficulty the Supreme Court had in finding a legal basis for a decision which all fair minded people would find obvious.

I therefore believe that as a minimum temporary measure the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute.

Such legislation should be started in the Lords, and not subject to the Salisbury Convention.

However a populist government elected on a minority of the popular vote, in an election beset by widespread lying and voter suppression would find it easy to repeal such measures. They need to be coded in an entrenched constitution.

Note 1: https://simonicity.com/tag/independent-review-of-administrative-law-iral/

submitted by David H Smith, 8th October 2020

Corrupt Government Sliding into Dictatorship

Unless humanity can get its act together, it could be virtually extinct within a couple of generations. The only hope for humanity is a comprehensive plan for greening the economy, which involves a radical reform of the financial system to divert money to productive green investment rather than speculation. Such a plan has been called the Green New Deal, but Britain is moving in the opposite direction.

Boris Johnson has shown clearly that he does not respect parliamentary government, the civil service or the judiciary. The people have spoken in 2016 but only on one issue, and they are not allowed to rethink. If he was honest about this he would allow a straightforward popular vote on whether he should remain in power, but I have little doubt he intends to hold onto power come what may. Even if he did allow such a vote, it is not a satisfactory alternative to parliamentary democracy.

I do not believe any longer that the government’s actions are merely incompetent; it is corrupt. It serves itself and its friends above all else. It is not just personal financial gain; power is the ultimate aphrodisiac It is not sufficient to remove Bojo and Cummings; the corruption has been building over decades, as has been charted by Peter Oborne’s books, ‘The Rise of Political Lying’ and ‘The Triumph of the Political Class’. Oborne did not cover the corrosive effect of the neo-liberal paradigm; he makes no claim to be an economist. Others are now gradually waking up. For example there is the post by Meg Russell Director of the normally ultra cautious UCL Constitution Unit.

Boris Johnson and parliament: an unhappy tale in 13 acts

Posted on September 1, 2020 by The Constitution Unit

https://constitution-unit.com/2020/09/01/boris-johnson-and-parliament-an-unhappy-tale-in-13-acts/

This post did not refer to the intention to abolish the Electoral Commission, thus facilitating the manipulation of elections as practised in the USA.

Now, tax expert and left wing economist Richard Murphy is also recognising that it is corruption.

It is now almost certain there will be no deal with the EU and so we can expect both food and medicine shortages in January. There could be unrest as a result; this will give the government an excuse to declare a state of emergency which I expect will be made permanent. Only mutiny by the armed services would prevent this.

Even if we somehow get through the first few months of 2021 without major loss of life additional to what we face from Covid19 2e will slide into dictatorship, and so instead of a united people fighting climate change we face extinction in a dystopia as bad as that described in Orwell’s book ‘1984’. The means will be different, but the results will be similar.

Those of us who have been fighting for years for constitutional reform including voting reform have failed. Had we been more conscious of the corruption around us we might have done better.

What Happens on 1st Jan? It’s no Longer a Question of What’s Fair

Post-Brexit trade talks between the UK and EU are approaching deadlock, with progress “frozen” as both sides refuse to back down on the key issues of fisheries and state aid.

Both sides accept time is running out to broker a deal before the transition period comes to a close at the end of the year. It would see UK firms facing high tariffs for trade with businesses in the EU.

Both parties have said any deal needs to be concluded by October in order to be ratified in time.

So it seems no agreement will be reached. It’s not a question of what’s fair; Europe holds the cards. Any nation could refuse to ratify. Spain could say, ‘hand over Gibralter or no deal’. So what are the consequences? Firstly our exports will be badly affected leading to more business failures. We can import food provided hauliers are prepared to travel to Europe empty; their charges will have to go up drastically; food prices will go up. Will we have to charges tariffs on imports; what are the WTO rules? What about customs checks; we are not prepared?

Our economy already damaged by Covid19 and the government’s mishandling of same. will be further damaged by Brexit.

Did it have to be this way? I suggest it was Brexiteer ideologues that ruled out a customs union. It was Boris who ruled out further extension, thus weakening his position. Some say that he does not want a deal with Europe.

In the last few days there have been further leaked reports about the possible consequences.

Boris will have to go but the Tories will hang onto their majority and I fear that there will be a succession of failing governments. during which Scotland will leave the union (unilaterally if necessary). Britain will lose any influence in the world. This is surely a time for a National government, but our chaotic constitution suggests we will not get it.

 

 

Why Do not Treaties Require Parliamentary Approval?

In the UK treaties can be ratified without the consent of Parliament. This contrasts stronly with the situation in the USA where the president must submit treaties to the Senate for its advice and consent to ratification, which requires a two-thirds vote.

From the late 19th century it became the common practice to present the treaties of the United Kingdom to Parliament after they had come into force. Prior to that one must presume that Parliament and people had been content to enjoy the fruits of empire without asking how ‘lesser breeds without the law’ had been trampled on.

On 1 April 1924, during the second reading debate on the   Treaty of Peace (Turkey) Bill, Mr Arthur Ponsonby (Parliamentary Under-Secretary of State for Foreign Affairs in Ramsay MacDonald’s first Labour Government) made the following statement:

It is the intention of His Majesty’s Government to lay on the table of both Houses of Parliament every treaty, when signed, for a period of 21 days, after which the treaty will be ratified and published and circulated in the Treaty Series. In the case of important treaties, the Government will, of course, take an opportunity of submitting them to the House for discussion within this period. But, as the Government cannot take upon itself to decide what may be considered important or unimportant, if there is a formal demand for discussion forwarded through the usual channels from the Opposition or any other party, time will be found for the discussion of the Treaty in question.

At the same time, he stated that:

Resolutions expressing Parliamentary approval of every Treaty before ratification would be a very cumbersome form of procedure and would burden the House with a lot of unnecessary business. The absence of disapproval may be accepted as sanction, and publicity and opportunity for discussion and criticism are the really material and valuable elements which henceforth will be introduced.

In 1994 the UK ratified the Marrakesh agreement which (amongst other things) set up the WTO and established the General Ageement on Trade in Services), under the Ponsonby Rule. There was a Westminster Hall debate on the motion that ‘this House do now adjourn’. I read the transcript a couple of year after the event and it was clear that none of those present had  been aware (or admitted to being) aware of the issues which were to emerge.

In 2009 Gordon Brown commissioned a review of the Royal Prerogative. One outcome was section 2 of the Constitutional Reform and Governance Act 2010. This was said to ‘put the Ponsonby Rule on a statutory basis’.

As a House of Commons Library Note explains. The process is this:

  • The Government may not ratify the treaty for 21 ‘sitting days’ (ie days when both Houses were sitting) after it was laid before Parliament.
  • If within those 21 sitting days either House resolves that the treaty should not be ratified, by agreeing a motion on the floor of the House, the Government must lay before Parliament a statement setting out its reasons for nevertheless wanting to ratify.
  • If the Commons resolves against ratification – regardless of whether the Lords did or not – a further 21 sitting day period is triggered from when the Government’s statement is laid. During this period the Government cannot ratify the treaty.
  • If the Commons again resolves against ratification during this period, the process is repeated. This can continue indefinitely, in effect giving the Commons the power to block ratification.

However the government does not have to allow time for such motions to be put or debated. Moreover “the treaty [may be] been published in a way that a Minister of the Crown thinks appropriate”. i.e. it can be so highly redacted as to be meaningless. So the ability of the Commons to block ratification is just hypocrisy. So who benefits?

 

Blocking the Rhu Narrows – A Mad Idea?

A few days ago we were exercising our dog in Portland harbour from the causeway between Weymouth and Portland. I got speaking to a rather garrulous Scot about nautical matters. He suddenly came out with the claim that his mates were planning to acquire a clapped out freighter to sink in the Rhu narrows to obstruct passage of submarines to and from the Faslane naval base. It was difficult to judge how serious he was.

Out of curiosity I visited the website ‘visitmyharbour’ and looked at the Gareloch and indeed there is a channel past Rhu point dredged to 13 metres but it is very narrow. If a freighter could be sunk at that exact spot it might cause a blockage. Whether it would make sense to the Scots is another matter; Faslane provides a lot of employment.

Whether the so called independent nuclear deterrent makes any sense any longer is also problematical. With the development of hypersonic cruise missiles and increasing ability to find any submarine anywhere, Russia could probably deniably take out any Trident sub with a tactical nuclear weapon. The MOD deny this; they say,

“We believe it is unlikely there will be any radical technological breakthrough which might diminish the current advantages of the submarine over potential anti-submarine systems. In any event, we judge that a submarine will remain by far the least vulnerable of all the platform options.”

The Constitution We Need

In its manifesto the government promised a Constitution, Democracy and Rights Commission. Many changes were promised, most of which appear to be attacks on Parliamentary democracy on the pretext that the EU referendum result trumps everything else for ever.

This was discussed in the House of Lords on 16th June. Baroness Whitaker (Lab) asked what the terms of reference would be and about the appointment process. Lord True (Con) was extremely evasive citing Covid19. Opposition peers had various concerns none of which were addressed. Lord Strathclyde (Con) referred to ‘political interference by the judiciary’.

Baroness (Natalie) Bennett referred to a survey indicating a general distrust in the government and suggested that a written constitution might restore confidence. She was obviously referring to the system of government, but needless to say Lord True chose to take it this as an attack on the current government. One wonders if the government is regretting it made the promise to set up the commission.

The campaign group Unlock Democracy calls for a deliberative assembly, as does the Constitution Unit at UCL. The latter organisation never advocates any radical reform and Unlock Democracy don’t spell out what reforms they want, whereas It is quite clear what the government wants. If there were a deliberative assembly right now it would be the government narrative that would control the agenda. Unlock Democracy’s predecessor group Charter 88 were fairly clear what they wanted. Under the first Blair government they got some of it. The Human Rights Act, Freedom of Information (though with many exemptions) devolution for Scotland and to a lesser extent for Wales. They got nowhere however in checking executive dominance at Westminster. That would have required proportional representation, reform the House of Lords and a written constitution to secure the independence of the judiciary, fair electoral laws and much else. Recently other needs for reform arose from changes in the way parliament is dissolved, and Prime Ministers appointed; and also Civil Contingencies.

The prospects for reform in the near future look very dim and that is possibly why reformers seem to be reluctant to put forward positive proposals. However it seems likely that in the new year things will be so bad that Johnson’s position will become untenable; he will have to go. Tories will choose to hold another leadership election; but what if the new leader cannot command a majority; what if the 80 seat majority simply disappears? We could land up with a dictatorship; but we could land up with some kind of national government. That might be the opportunity for change and reformers must be ready. They must decide what they want – and feed it into any Constitutional Convention – even if all others are floundering

Dr Elliot Bulmer of the (Scottish) Constitutional Commission suggests that the arguments for and against specific proposals can be clarified by examination of a draft constitution. But he believes that few self proclaimed experts have ever read an actual constitution text, let alone tried to draft one. He has produced a couple of drafts of a couple of a constitution for the UK to include in his forthcoming book, but he may publish the drafts separately after publication of the book.

He explains that he was not working from a blank sheet of paper. He writes, “It is to independent countries of the former British Empire, who took the Westminster Model, adapted and developed it, that we must look to find examples, models and precedents of how to restore and renew our constitution. Almost every proposal for constitutional reform that might arise in the United Kingdom has been tried and tested in one or more Westminster Model constitutions around the world.” He assumed for the purpose of the drafts that reformers would be prepared to concede retention of the monarchy and the Church of England to the traditionalists.

In the meantime, in order to see what a constitution looks like you can find the Irish constitution at https://www.citizensinformation.ie/en/government_in_ireland/irish_constitution_1/constitution_introduction.html

If you are interested in this approach post on the Unlock Democracy facebook group.

Did the Queen Alter the Constitution in July 2019?

This is just to illustrate the muddle caused by our uncodified constitution.

When Mrs May resigned from the premiership in July 2019 after Boris Johnson had won the leadership contest, the Queen immediately invited Boris to accept the job. I question whether she followed precedent or set a new one.

Back in 1978 when Lord Hailsham wrote, ‘The Dilemma of Democracy..’ The convention appeared to be that the Queen would appoint the person most likely to be able to command a majority in the Commons. Hailsham recognised that in some cases this required an element of judgement. He pointed out that if the Queens’ judgement were to prove wrong No great harm would result; it would be necessary to choose again. Since then opinion has hardened; the very thought that the Queen might exercise any judgement at all seems to have turned into a heresy. That being so she needs to be clear about the rules. In the last year of the Labour government, Brown asked the Cabinet Secretary to lead on the drafting of a Cabinet Manual to ‘provide a source of information on the laws, conventions and rules that affect the operation and procedures of the Government.’ The first edition was published in October 2011. It was never intended to be an exercise in constitutional innovation, but rather a record of how things have worked up to date, but given that the constitution is constantly evolving, it should need constant updating. However as far as I have been able to find out no second edition has yet emerged.

A key paragraph in the manual deals with the change of Prime Minister in the middle of the parliament. It reads, “2.18 Where a Prime Minister chooses to resign from his or her individual position at a time when his or her administration has an overall majority in the House of Commons, it is for the party or parties in government to identify who can be chosen as the successor.”

But in July support for the government was waning, due in part to the problem of the Irish border. The election of Boris as party leader did not solve this; in the first months of his premiership he ruled by executive authority alone and as part of that he had to request the irregular prorogation.

In choosing him, arguably para 2.18 did not apply. It was a new situation created by the Fixed Term Parliaments Act. The manual did not provide for this. Indeed it could not since it is all based on precedent. The Queen (or her advisers) had to make a decision. The principled answer might have been to ask the speaker for a nomination from the House of Commons. This would reflect the provision in a number of constitutions (including the Irish) that [the head of state] appoints the [prime minister[ on the nomination of the [lower house of Parliament]. The problem for the Queen and the monarchy with following this route would have been that as the opposition parties would not talk to each other Boris’s name would emerge, and she would have to deal with him subsequently, and their relationship would be soured. The success of Boris’ brilliant election campaign as the champion of the people against Parliament may not have been foreseen.

If the decision to appoint Boris without consulting Parliament was intended to protect the monarchy in the short term, in the longer term it would be wise for the Queen or her successor to make it known that if the circumstances repeated he would wish to know the view of the House of commons.

Drafts of the Constitution

Latest draft can be found at:  https://moneyversusdemocracy.files.wordpress.com/2020/07/constitutionwe-need-d2.doc

 

Leadership in a Democracy

by David Smith, 1st draft 4th June 2020

Right now the prospects for UK democracy and even the UK’s survival as a functioning state look very dim. However if there are as many deaths from covid19 as I fear, it is just possible that Boris and his gang will get booted out and we may have a chance to reinvent our democracy. This article is based on that possibility.

My purpose is not to second guess the findings of a a constitutional convention but merely suggest a few pointers. By making the UK more democratic we cannot afford to make any level of government incapable of making effective and timely decisions in a perilous world. We need to think about how to make effective decisions and once the right decision is made ensure that it it is executed properly.

A certain Management and IT consultancy displayed a poster ‘Teamwork: Lead, Follow or Get Out of the Way’, with a photo of a file of elephants. Most of the time we we have to work that way to get anything done, but the leader has to recognise when an important issue arises and a decision has to be made..That’s when he or she needs to engage all the team in making that decision, and sitting round a committee table with a linear agenda is not the way to do it..

When a decision at any level is made by what ever means then someone person should be responsible for its execution. That person is a leader. If a group of people are made responsible then effectively no-one is in charge. The choice of a leader must of course be as democratic as possible. As a first step the UK could follow Irish practice whereby the head of state would appoint the Prime Minister ‘ on the nomination of the House of Commons’. In most cases following a general election the choice would be obvious and be ratified by newly elected MPs by remote voting. The choice of ministers should certainly be approved by Parliament. The exact mechanism needs debate.

What makes a good leader? Three things, the right motivation, using the varied experience and perspectives of others, and when a decision is reached executing it without hesitation. We have all heard about Nelson and his band of brothers. He got his captains together and there thrashed out a plan; and then Nelson took charge. This meant that the captains understood the plan thoroughly, they trusted Nelson, but they also recognised that the plan could go wrong and therefore knew when they should act independently. The goal was obvious. As I understand it, since the late 20th century, military officers in the field have been taught to follow Nelson’s example. National defence strategy is another matter of course. Business leaders have clear goals (set for them by company law and the markets), which they pursue successfully. The fact that these goals threaten the wider public interest is at present an issue for politicians.

Franklyn D Roosevelt was unusual as a politician in that he had a clear goal – to get the US out of the depression by what ever means [1]. On assuming office in 1933 he promised a ‘new deal’ but had no specific plans. He and Congress listened to a great many voices and many reforms were improvised in a very short time. According to the management guru Peter Drucker[2], FDR was a master of stimulating disagreement within the administration, and using it to understand the issues better. This is by no means the only way in which groups can effectively address complex issues, but it worked for him.

Other politicians lack clear externally imposed goals. First of all there are the conviction politicians who are sure they know what the country needs and are unwilling to entertain the possibility they are wrong. Such people are controversial and with the right voting system they can be restrained. More problematical are those who seek to establish their reputation on the basis of a ‘big idea’ which looks sounds good but turns out to have problems. Instances are the failed healthcare IT system initiation by Tony Blair, who was utterly ignorant of IT matters, Universal Credit ( the brain child of Ian Duncan Smith), and Boris’ extreme version of Brexit.

Universal Credit(UC) [3] sounded a good idea; it could be simpler to operate once fully implemented and it could be easier for claimants. IDS said it would make the social security system fairer to claimants and taxpayers. A key feature of the proposed new benefit was that unemployment payments would taper off as the recipient moved into work, not suddenly stop, thus avoiding a ‘cliff edge’ that was said to ‘trap’ people in unemployment. It shouldn’t have required a genius to figure out that this reform would be difficult to achieve and could run into trouble, and of course it has. The DWP’s initial estimate of the cost of rolling out this change was £2.2bn but within a year it had risen to £12.8 bn and later to£15.8 bn. Furthermore The National Audit Office maintained Universal Credit could incur higher administrative costs than the systems it replaces. A study by the Resolution Foundation published in November 2018 also predicted that Universal Credit would cost more than the older system of benefits it is replacing. What had gone wrong? UC is surely meant to simplify benefits. That being the case how can it be supported by a fancy front end bolted onto creaking legacy systems? But that is what the Government Digital Service proposed.[4]. But it would seem that the government had not really thought about the position of claimants.

Aside from the issue of cost, the government should have thought about the impact on claimants. What should have been done (and the Work and Pensions Committee should have insisted upon it) was to write a detailed description from the claimants’ point of view including how to change over from the legacy system, who would be the winners and losers, and how to deal with the gap in time between the ending of payments from the legacy system and receipt of the first payment under the new system. This document should have been debated by the committee and by charities looking after the interests of claimants. The Conservative government, however, does not wish to reveal how little it cares for the interests of the less fortunate. It prefers to let the right wing mainstream media signal its contempt, though some Tory MPs let the cat out of the bag.

The introduction of UC required legislation. That could have been an opportunity to set firm expectations on which the reform could be judged. Currently the government can ‘mark its own score card’. So long as that situation continues, governments have little motivation to act in the public interest. We need an independent score keeper, but who? Ed Straw has suggested a reformed second chamber.

Turning away from the national level we need much more power to be devolved to lower levels. Clearly local authorities must be given more autonomy and tax raising or tax varying powers.

But that is not enough we need another level of governance. The UK is unbalanced; England is so much larger than the other nations. Even Scotland has only the population of a modest sized English region. The formation of regional governments or at least assemblies is to be encouraged. Local authorities in the various regions should get together and put forward proposals which can be put to referendums. The second chamber – the Senate – should become ‘a chamber of the nations and the regions’. Senators should not be directly elected but instead appointed by the (smaller) nations and regional assemblies. Where there is as yet no regional assembly, Senators should be selected by sortition.

As well as being the champion of the regions the Senate should be the judge of the government’s performance. It is unlikely that the mainstream corporate media would initially at least respect the Senate’s verdict. To address this the BBC should have the constitutional duty to report the Senate’s verdict as prominently as it does government pronouncements. If the BBC fell short on this duty the Senate should apply to the courts to get the governors sent to prison for contempt.

Deliberative assemblies are becoming more popular. The charity Involve UK [5] aims to, ‘..support people and decision-makers to work together to solve our biggest challenges.’ This only works if both sides want to engage. Involve offers several models. Its biggest recent project has been ‘Climate Assembly UK’. Deliberations are complete and the plan is to present the results to the six select committees that sponsored it in July. How the government will respond remains to be seen.

In the absence of formal assemblies leaders have to be motivated to ‘Engage-Deliberate- Decide’ rather than ‘Decide- Announce – Defend’.

If I have harped on about the modern military, it is not because I am a fan of military action. They understand that what they are paid to do is to kill people and destroy things [6], but they need reasons for doing so. Politicians don’t always understand this.

*************************************

Notes:

[1]https://en.wikipedia.org/wiki/New_Deal

[2]P.F. Drucker, ‘The Effective Executive”, Butterwoth-Heinemann, 1967, chap 7

[3] https://en.wikipedia.org/wiki/Universal_Credit

[4] https://www.computerweekly.com/news/450303772/DWP-seriously-considered-suing-IT-suppliers-over-Universal-Credit-failure

[5] https://www.involve.org.uk/about/about-involve

[6] For example when Cameron wanted to rush into supporting the NATO action against Gaddafi, the Chief of the Defence Staff is reported as saying ‘We need a strategy.’ by which he meant that they needed to be clear why they were doing it and what the consequences were likely to be. Cameron did not receive this well. See Maj General Jonathan Shaw ‘Britain in a Perilous World: the Strategic Defence and Security Review we Need’, Haus Curiosities, 2014, Part 3 ‘Whitehall’, ‘The Worst Case: The rest (to varying Degrees)’, ‘Methodology’

Has Cummings Killed Populism in the UK?

When the Queen appointed Boris Johnson to lead a minority government he claimed to be the voice of the people – unlike Parliament. Since then government have taken several steps to limit the ability of Parliament to hold it to account, the latest of which was to end the virtual Parliament which seemed to be working well.

He might have been excused if his plans for finally exiting the EU had shown any signs of being less than disastrous, and if the government had been handling the Covid19 emergency consistently and competently. Instead we have a political adviser, who is suspected of pulling the strings, behaving unacceptably, and unlike an elected politician, made no attempt to hide his contempt for everyone else. On Monday Richard Murphy speculated that not only will this bring down Dom, Boris or both, but would kill of populism, https://www.taxresearch.org.uk/Blog/2020/05/25/has-cummings-killed-populism-in-the-uk/ .

The obvious thing for Boris to have done is to sack Dom, but for what ever reason he feels unable to do so, so Boris may have to go. What happens if he simply resigns without a replacement/ What would the Queen do?