Category Archives: Constitution and democracy

Henry Hill: Westminster can thwart the SNP’s attempt to entrench their emergency Covid powers

19 Aug

It is said that there is nothing so permanent as an emergency expansion of state power. True to form, the Scottish Nationalists have made a spirited defence of their claim to be the United Kingdom’s most enthusiastic authoritarians with a push to make many of the Scottish Government’s coronavirus powers permanent.

Due to the absurdly ill-planned nature of the current devolution settlement, there was no UK-wide pandemic response and Holyrood was left to devise its own pandemic control procedures. Two emergency acts were passed last year, both in single-day sittings, and MSPs subsequently voted to extend the provisions.

But now John Swinney, the Deputy First Minister, has launched a consultation on keeping many of these on the statute books permanently. According to the Daily Telegraph, he:

.”…unveiled a public consultation on removing the March 2022 expiry date for a host of extraordinary powers, including the ability to impose lockdowns, close schools and require people to wear face coverings.

“Controversial rules allowing more prisoners to be released early could also be extended, along with the wider use of fines as an alternative to prosecution.”

The Scottish Conservatives are up in arms about this, as are other civil society groups. There are several grounds to object to what the SNP is trying to do, both within the context of Scottish politics and in terms of the broader constitutional debate.

On the latter point, entrenching the Scottish Government’s pandemic powers would (and this is surely the intention) pre-empt any post-crisis review of the UK’s crisis-response architecture and vastly complicate any attempt to replace today’s balkanised arrangements with a proper, nationwide system. Moreover, since the financial measures that make lockdown viable are controlled by the Treasury, we can expect this move to be followed by yet another round of demands for devolution of borrowing and other financial powers.

Setting that to one side, it is not unproblematic to try and simply carry emergency legislation – subject to truncated debate and voted through at a moment of crisis – into ordinary law. Inertia is a powerful thing, as anyone who’s taken months to cancel a subscription they aren’t using can tell you.

There is thus a case to be made that if Scotland really does need laws such as these, there is no harm in allowing the emergency provisions to lapse and then introducing new legislation via the normal procedures. This is especially the case for laws which will touch on such liberties as freedom of assembly, which these will. Again from the Telegraph:

“SNP ministers also want to make permanent their power to make public health protection regulations, for example by limiting the number of people in gatherings, introducing lockdowns and requiring face coverings.”

Nor should MSPs discount the fact that by making permanent provisions which they promised would be temporary, voters will be completely justified in being more suspicious of them the next time emergency powers are required. Lockdowns as an extraordinary response to a novel pandemic virus are one thing; lockdowns as a normal tool in the Scottish Government’s public health arsenal are quite another.

That the Treasury has to underwrite the use of these powers may give the Government the cover it needs to override these provisions, should they become law. With new research finding that the ‘Union dividend’ to Scots is now higher than ever, there is no harm in not only emphasising the positive role the financial might of the British state plays in Scottish life, but using that power to justify a better-harmonised, more national approach to related parts of the constitution.

Henry Hill: The UK Internal Market Act empowers Johnson to take the fight to Sturgeon on drugs policy

5 Aug

One of the big questions that has to determine whether or not devolution is a worthwhile experiment in how to govern the United Kingdom is whether or not devolved governments are held accountable for devolved failures. The row over Scotland’s abysmal drugs deaths figures may be a chance to find out.

If you missed the story, the latest data has seen Scottish drugs fatalities soar yet again. As the Guardian reported: “Scotland continued to have Europe’s highest per capita rate of drug deaths, at 25.2 fatalities per 100,000 people, more than three-and-a-half times higher than the rest of the UK.”

This is just one of many fronts in which the Scottish National Party’s woeful record of domestic governance has started pushing to the fore since May’s devolved elections, but probably the most tragic.

Nicola Sturgeon has, entirely predictably, tried to shift the blame onto Westminster. The SNP blame Scotland’s figures on the fact that the Misuse of Drugs Act, which is reserved Westminster legislation, prevents them from introducing so-called ‘shooting galleries’ – safe consumption rooms where addicts can be sure of clean needles and so on.

Suffice to say, this doesn’t stack up. The prohibition on shooting galleries applies across the UK, so it cannot explain why Scotland’s drugs deaths are running so far ahead of those in England and Wales. Nor are drugs policy experts convinced that safe consumption rooms are the ‘silver bullet’ it suits the SNP to pretend.

Much more obviously to blame is the Scottish Government, which over the ten years it has been in office has repeatedly cut funding for rehabilitation services. Ruth Davidson, in a long piece for UnHerd, sets out the charges with cold clarity:

“Scotland has some of the best residential rehabilitation facilities in Europe. So good, in fact, that Dutch authorities and insurers pay to place patients in facilities such as the Castle Craig hospital in the Scottish Borders. In 2002, Castle Craig admitted 257 patients funded by the NHS; in 2019, the number dropped to just five. There’s no shortage of demand for services, but they aren’t accessible to the Scots most in need. Currently a quarter of Castle Craig’s places are being filled by Dutch patients, with most of the remainder being funded privately or via health insurance.

“Meanwhile Glasgow’s largest residential rehab centre, Phoenix Futures, was forced to abruptly cut its number of beds from 54 to just 14 in 2019, after a Government tender was revoked. The Mungo Foundation’s Cothrom Eile service — in Nicola Sturgeon’s own Glasgow constituency — was forced to close its doors completely in 2019 due to funding cuts.”

This is entirely in keeping with the SNP’s track record, which compasses the repeatedly-delayed ‘Sick Kids’ hospital in Edinburgh. the appallingly mishandled CalMac ferries contract, and not one but two different scandals over bridges. The Nationalists are just bad at running Scotland.

Yet time and again, they have been able to evade a proper electoral reckoning by hiding behind the constitution. Sturgeon looks set to do so again by picking a fight over shooting galleries, threatening to try and introduce them in spite of the Misuse of Drugs Act. This would force the Government to take her to court, as it did over another ultra vires bit of Holyrood legislation – both carefully chosen by the First Minister to create bad optics for Boris Johnson.

(So too, it goes without saying, is her claim that the Prime Minister has ‘snubbed’ her by refusing to meet as he visits Scotland this week. In fact, the Government is deliberately trying to normalise British ministers’ visits to Scotland, and prevent the SNP casting them in the role of visiting dignitaries.)

If the First Minister does decide to press ahead with illegal policy, Westminster must obviously act to defend the constitution. It should also explore ways of tackling this sort of behaviour before it comes to court, for example by prohibiting Scottish civil servants – who are part of the Home Civil Service – from working on business that lies outwith the competence of the Scottish Parliament.

At the same time, ministers could explore ways in which the Government could provide direct support to Scottish rehabilitation services via the new spending powers authorised in the UK Internal Market Act, and contrast the SNP’s posturing with immediate, practical support from the British state.

Should the Prime Minister put his COP26 spokesperson in the House of Lords?

3 Aug

Last month, the Commission for Smart Government attracted controversy when it proposed that the Prime Minister ought to be able to appoint ministers from outside Parliament. The Independent reported it thus:

“Describing its reforms as “radical”, the commission suggests giving prime ministers the ability to appoint ministers who are not parliamentarians, “to allow additional talent to be brought in from outside government”. Attempting to tackle inevitable questions of accountability to parliament, the report suggests the creation of oral committees that can summon the ministers who are not MPs or peers to appear.”

Might Boris Johnson have some sympathy with this proposal? He does seem to be developing a habit of giving wide-ranging political briefs to people who are not ministers.

Lord Frost may have been elevated before he was put in control of salvaging the Government’s position in Northern Ireland, but it was as David Frost that he delivered his speech, ‘Reflections on the revolutions in Europe‘, making a wide-ranging and political case for what Brexit meant.

Now we have Allegra Stratton, the Prime Minister’s spokesperson for COP26, attracting controversy with advice on rinsing dishes, criticising the official Net Zero target, and her preference for diesel cars over electric.

These are not unreasonable positions. But it nonetheless seems strange that a mere spokesperson is publishing articles urging voters to go ‘one step greener’ under her own name, rather than the Prime Minister’s. Indeed, it very much reads in the tone of a ministerial piece.

Perhaps it is not surprising that the role is an ill-defined one. After all, it was only conjured to find a position for Stratton after Boris Johnson rightly abandoned plans to introduce US-style televised press briefings.

But if the Prime Minister wishes Stratton to have a proper political role, then he should elevate her to the peerage as he did Frost. Contra the Commission for Smart Government, it is precisely one of the roles of the House of Lords to “allow additional talent to be brought in from outside government” – whilst remaining properly accountable to the legislature.

Henry Hill: Sunak must always remember that the Treasury is one of the few truly British departments

29 Jul

A subject we have returned to time and again in this column over the last year or so is the way the pandemic has exposed the chaotic state of the UK’s ‘territorial constitution’ – who governs what, basically.

Rather than being able to pursue a joined-up approach to combating Covid-19, the Government was instead reduced to trying to stitch together a ‘four nation’ strategy with the devolved administrations.

But Rishi Sunak’s visit to Scotland this week shows that these tensions may yet have some distance to run. Alison Thewliss, the SNP’s ‘shadow chancellor’, has urged him to apologise for winding down furlough and other economic interventions ‘early’.

The root of the problem is as follows. Control over lockdown and other pandemic control measures is in the hands of the devolved governments – that’s how Mark Drakeford managed to close ‘non-essential’ supermarket isles. But control over the financial assistance that makes things such as furlough possible is controlled by the Treasury.

Even in the most fevered devocrat imagination, it could scarcely be otherwise – not unless Edinburgh and Cardiff wished to finance the pandemic on their own resources, which seems doubtful. We could not have devolved administrations simply voting themselves British cash without accountability to our British Parliament.

But it does raise the prospect of yet another row, with Drakeford and Nicola Sturgeon accusing the Government of dragging Scotland and Wales out of lockdown on England’s schedule.

Nor is this the only constitutional minefield the Chancellor will have to navigate. Assuming it isn’t abandoned for other reasons (including basic generational justice), Whitehall sources suggest he could face a backlash over the constitutional dimension of his proposals to hike National Insurance in order to fund social care.

What constitutional dimension? Well, NI is a tax collected on a UK-wide basis, whereas social care is a devolved competence for which the Government is only responsible for England. This is thus, apparently, the first time a British tax has been increased explicitly to pay for an England-only spending commitment.

Of course, any increase in social care spending will generate Barnett consequentials, so the other nations would get the money ‘back’. But nobody likes a tax hike, especially when the SNP can weave a grievance into it. It’s also a bit of an unforced error, as the link between the tax increase and the spending is only in the Government’s rhetoric and could have been avoided.

Sunak is talking up the ‘strength of the Union’, and rightly so. As Chancellor, he commands one of the few truly powerful British departments, with the ability to make its presence felt in every corner of the country. It is therefore especially important that he is properly prepared to do battle with the nationalists – be they SNP or Labour.

Henry Hill: Scrapping EVEL makes ‘muscular unionism’ more important than ever

15 Jul

A couple of weeks ago, I looked at what Conservative MPs and advisers thought about the Government’s Union policy, such as it is. One feature was the broad support for scrapping ‘English Votes for English Laws’, or EVEL.

This support is not universal. Some strategists are concerned that ministers have simply de-activated a potentially potent weapon against a future Labour government. Others are concerned that leaving the West Lothian Question unanswered will only encourage those advocating even worse solutions, such as an English Parliament.

And that is not forgetting the not inconsiderable danger that a future Parliament may have to confront the question in a much more urgent fashion if the situation EVEL was supposed to guard against – a British government without a majority in England – ever arises.

However, the real virtue of EVEL is perhaps best illustrated by the nature of the case made by its critics. I previously quoted those concerned that it undermined Westminster’s ‘universal mandate’. But since then Andrew Bowie, in a piece for this site, has provided a full-length and eloquent example of what I mean.

Some of his arguments are more persuasive, others less. The idea that pre-1972 Northern Ireland, with its 12 MPs, provides any compelling evidence against the case for EVEL is a stretch, to put it mildly.

Likewise, the claim that it creates “two tier of MP” skates over the fact that it was actually devolution that did that. The West Lothian Question is entirely about the creation of two classes of MP. (Not to mention the historical operation of the Scottish Grand Committee…)

As for the claim that there are no such things as ‘England-only laws’, that is a much more compelling argument for reform of the Barnett Formula than it is against EVEL.

However, it is significant that until the debate around the UK Internal Market Act, it tended to be only in debates on EVEL that this sort of argument was ever deployed. One of the most refreshing things about the debates on its introduction was hearing Labour MPs from Wales, previously content to incant about the importance of “more powers”, suddenly stressing the inter-connected nature of our United Kingdom.

The problem with this line of thinking is that it only works if it cuts both ways. If Welsh and Scottish MPs should get to vote on English legislation because of the possible it might have on their constituencies, why should English MPs not get to vote on Scottish and Welsh legislation on the same basis? You don’t need to look very hard to find, for example, MPs for seats on the Welsh border with long-running concerns about the impact of decisions made in Cardiff Bay on their local NHS services, or the fact that the Welsh Government has taken control of passenger railway services that serve English routes.

Nor is it impossible to imagine, as devolution continues to metastasise, the profound impact that different tax or regulatory regimes could have on border communities.

Ministers have taken a first, tentative step towards this line of thinking with the UK Internal Market Act, and are teeing up the next with the upcoming Subsidy Control Bill (which has been dubbed ‘Ukima II’ by some insiders). But some high-profile champions of scrapping of EVEL also opposed Ukima and are set against the sort of ‘muscular unionism’ it embodies.

Perhaps Mark McInnes, the Prime Minister’s incoming adviser on the Union, can impose some coherence. But until then, the moral unionist case against EVEL will ring hollow. It cannot be seriously argued that asking Scottish and Welsh MPs to crack on with some casework whilst English legislation is debated poses a more serious threat to the Union than creating separate legislatures and an entire devocrat class to produce Scottish and Welsh legislation in isolation.

Andrew Bowie: Why this Conservative and Unionist government is right to scrap ‘English Votes’

13 Jul

Andrew Bowie is Member of Parliament for West Aberdeenshire and Kincardine, and a Vice-Chair of the Conservative Party.

“The British constitution is a mess.” So declared my Politics lecturer in 2012, a German who simply could not understand our keenness to retain an uncodified set of rules and guidelines as our preferred method for governing a modern, 21st-century state.

Least of all could he understand the constitutional anomaly that was England and the English. Without a Parliament of its own, the largest and by far wealthiest part of our United Kingdom, seemingly allowed its laws to be determined by the votes of MPs who represented parts of the country where those laws would, seemingly, not apply.

This “West Lothian Question”, a phrase coined by Enoch Powell in 1977 after the anti-devolution Labour MP, Tam Dalyell, who hailed from that constituency, repeatedly raised the issue of whether MPs from Scotland, Northern Ireland, and Wales should be able to vote on issues that were exclusively English.

It took until 2015 for the Cameron CGovernment to introduce measures designed to prevent MPs representing constituencies out-with England having a vote on so called “English Only Laws”. And so English Votes for English Laws (‘EVEL’) was born.

And it is, in my opinion, the most ill-conceived, wrongheaded and damaging measure ever passed by any Government in modern times, coming a close second to the Fixed-term Parliaments Act. That is was introduced and championed by my Party, the Conservative and Unionist Party, is frankly mind boggling.

The argument that devolution was new and therefore needed some balancing so as to protect English laws from undue influence from those ‘rebellious Scots’ (or indeed, the Welsh or Northern Irish) is nonsense. Devolution has existed in the modern United Kingdom for far more years than it has not – from 1922 to 1972, no steps were taken to deprive Northern Irish MPs of their right to vote on areas that were seen to be devolved, even when those MPs deprived Labour of working majorities.

And why? In the words of then Conservative Shadow Home Secretary, Peter Thorneycroft, “every member of the House of Commons is equal to every other member of the House of Commons.”

That, I firmly believe. In our sovereign parliament of the United Kingdom, we representatives, drawn from across the whole of our United Kingdom are equal and entitled to vote on every piece of legislation placed in front of us.

EVEL created two tier of MP. As a Scot and a Unionist I found it grossly offensive to be informed I could not vote at certain stages of bills on education or health for example. For, as a Unionist, I care just as much about the welfare, health and education of people in Aldershot as I do about Aberdeen.

Now, of course I have heard the arguments that EVEL does not in fact prevent any MP from voting on a bill before the house, only that it gives English members the ability to veto certain legislation. But that is simply not true in practice- Scottish, Welsh and Northern Irish MPs do not have their votes counted at stages of a bill’s progress through the House. Therefore, my ability to influence legislation is taken away from me and other colleagues – in our sovereign parliament, where we are equal.

And, as has been pointed out by constitutional experts like Vernon Bogdanor, even this ability to veto poses a huge issue for governments in future that may command a majority across the UK, but not in England…it would be deadlocked, having its domestic legislation vetoed by an English dominated opposition – unable to pass legislation that affects the citizens of its largest constituent part!

And finally, whisper it, and don’t tell the Nats…but there is no such thing as ‘English Only Laws’. Thanks to Barnett consequentials, almost every single measure debated and voted on has financial implications for areas that appear, on the surface, to be wholly devolved. If we were, for example, to increase or indeed, decrease funding for something as innocuous and seemingly wholly ‘England Only’ as school sport funding, or smart motorways, the ‘block grant’ would increase or decrease by the amount determined by the Barnett Formula.

And as almost every law has some sort of financial impact, there is hardly anything that comes before us that does not affect the devolved administrations ability to spend more, or less, on their priorities.

Therefore EVEL is bad law. It doesn’t work and causes more problems than it solves. Let’s have more devolution in England – to our regions and localities. But let us not divide even further down national lines.

We are a proudly Unionist Party. This Prime Minister a proud Unionist. His instincts that we are all equal servants of our United Kingdom, in our sovereign Parliament of this United Kingdom are the right ones. He is right to move to revoke English Votes for English Laws and we, in supporting him, should declare that we will have no truck with separatism, nationalism and division.

And that we, Conservatives, support our Government’s agenda for our one nation – be that for the people of Cornwall or Caithness.

Henry Hill: Unionists’ court defeat shows scale of the challenge Johnson faces as ‘Minister for the Union’

1 Jul

Last week, I looked at press reports that David Frost had secured what I called a “stay of execution” for east-west supply chains between Great Britain and Northern Ireland.

And indeed, this morning’s papers report that the UK and the EU have agreed a three-month extension to the ‘grace periods’ on foodstuffs being shipped from the mainland to the Province, as well as generally improved relations between the two sides in the negotiations.

So far, so good. However, a three-month extension is not a lasting solution, and there are still plenty of signs that the two sides are a long way from finding one.

EU sources, for example, have been briefing that London has accepted that this latest extension is indeed to allow Northern Irish businesses to establish new, south-facing supply chains, which if true would make the entire standoff pointless. Meanwhile the FT reports that the Prime Minister insists that it is for Brussels to move:

“Johnson said the EU needed to address its interpretation of the protocol and how it related to “the ban on chilled meats, the restriction on the circulation of cancer drugs, and the fact that 20 per cent of all the customs checks carried out in the whole of the EU are carried out in Northern Ireland”.”

Stephen Booth has outlined on this site today how the UK intends to push for a bespoke arrangement, just as several other countries have done.

Meanwhile Unionists will take even less comfort from Boris Johnson’s stern tone than even they might previously after yesterday’s defeat in a Belfast court of the legal challenge to the Protocol. Government lawyers successfully argued that the Withdrawal Act had impliedly repealed Article Six of the Act of Union, which provides for unhindered free trade within the United Kingdom, despite the Prime Minister insisting in the House of Commons that no such thing had taken place.

The result sheds a cold light on skewed legal playing field faced by those trying to defend Northern Ireland’s position in the Union. The judge conceded that the Act of Union is a ‘constitutional statute’, but denied it the immunity from implied repeal that is basically what defines a ‘constitutional statute’. He acknowledged that trade between the two parts of the country was on an unequal footing, but denied that Northern Ireland’s ‘constitutional status’ had changed in any manner relevant to the Belfast Agreement.

I have written before about the dangers of applying the Agreement in a one-sided fashion, and this is another example. Over the past few years, the narrow range of north-south issues protected under the Annex to Strand Two have somehow metastasized into an entitlement to an invisible economic and social border with the Republic of Ireland that is nowhere in the text of the treaty.

Meanwhile the courts are increasingly holding to the Irish nationalists’ line that Ulster’s connections to Great Britain have no such protection, and the Belfast Agreement’s protections for the Province’s status apply only to top-level British sovereignty.

This is not what unionists thought they were signing up to. We know because David Trimble is telling us, although it is no longer fashionable to pay much regard to the Nobel Prize-winning co-architect of the treaty everyone professes to be so concerned about. Given that the Belfast Agreement and the settlement that rests on it only works if it commands the respect of both communities, you’d think it was obvious that weaponising it against one of them is extremely short-sighted.

Instead we have Simon Hoare accusing unionists of trying to ‘shred’ the Agreement… by trying to assert the protections they thought they enjoyed under it.

This strikes a similar tone to that adopted by anonymous EU sources in the Irish press during the negotiations, when they said that Theresa May should “say to the DUP, listen you guys you’ve got nowhere else to go anyway, so this is what’s going to happen”. Basically, Northern Irish unionists should stop making things awkward for Brussels as it tackles the deadly peril to the Single Market posed by illegal British sausages.

The threat of Scottish independence. Is it business as usual? First, pre-election panic. Then the vote. And finally…back to complacency.

30 Jun

Once of the most nerve-wracking battles of last month’s elections was in Scotland, where Douglas Ross and the Conservatives fought a high-stakes rearguard against Nicola Sturgeon’s bid for a second overall majority for the SNP.

The unionists prevailed, by a single seat, to sighs of relief in London, and since then the momentum seems to have gone out of the First Minister’s drive for a second referendum.

However, pro-Union Tories are also concerned that rather than using this window of opportunity to make an aggressive push on the Union, the Government has instead relegated it to a lower priority.

“They’re squandering the opportunity of the Holyrood result”, said one familiar with the development of the Union policy. Instead of a structured and ambitious programme, the Government is simply offering a series of announcements “of varying quality” and with no obvious theme.

This is not to say that all the announcements are unpopular. There is wide support for Michael Gove’s proposal to scrap English Votes for English Laws (EVEL), described as “a sh*t Cameron policy to solve a political problem which did not exist”. One MP even conceded to having “some sympathy” with the late Donald Dewar, the Labour MP and architect of devolution, who famously said that the best answer to the West Lothian Question was to “stop asking it”.

However, there was generally some acceptance that the ‘WLQ’ – the problem of Scottish and Welsh MPs voting on issues that affect English constituencies when those issues are devolved in their own seats – needed some kind of answer, even if EVEL wasn’t it. Several I spoke to explicitly linked the repeal of EVEL with the passage of the UK Internal Market Act (UKIMA), which grants ministers extensive powers to authorise UK-wide public spending in devolved policy areas.

As one person I spoke to put it, EVEL serves to further entrench devolution and “undermines Westminster’s universal mandate”, just as UKIMA seeks to reassert it. An MP suggested that the House of Commons should also overhaul its rules so that MPs from Scotland and Wales could table questions about devolved issues, and that devolution should not be “a one-way street”.

The problem with this is that whilst such an approach might in theory offset the real dangers involved in scrapping EVEL without replacing it, the move is not being sold as part of such a balancing act and there is no sign yet of a blitz of UKIMA policies – although there was a hope that a broader strategy will come together over the next few months.

Suggestions for what such a programme should involve include expanding the franchise for a future referendum to include Scots in the rest of the UK (“although make sure you poll them first”), building on the Union Connectivity Review, spending on cultural programmes and trying to set up a UK-wide amateur football league, promoting the Inter-Governmental Review, and a specific focus from the Department for Education on UK-wide projects (one MP suggested schools in Scotland and Wales should look at joining up to ‘One Britain, One Nation’).

Meanwhile ministers were urged to avoid “any dilution of parliamentary sovereignty” and “Gordon Brown-style constitutional guff”.

Boris Johnson was also advised to overhaul the implementation architecture behind Union policy, with even critics of Michael Gove’s approach saying that if he is in post then he should be “properly empowered” to do the job.

The past few months have seen the launch of both the parliamentary Conservative Union Resources Unit, which brings together around 80 unionist backbenchers, and Conservative Friends of the Union, which aims to train and organise the grassroots. We must hope the Prime Minister and Cabinet take the Union as seriously as the MPs and activists do.

Row over Hancock’s emails highlights the trade-offs involved in ‘Freedom of Information’

28 Jun

As the Matt Hancock story develops, one angle which may get more attention as the initial outrage over the adultery and rule-breaking dies down a little is the broader question of whether or not people close to him or Gina Coladangelo received improper favour from the Department of Health.

One thing fuelling speculation about this is the fact that the former Health Secretary reportedly kept using his private email for official business. This morning’s Guardian reports:

“Matt Hancock’s use of private emails that bypassed disclosure rules when doing government business came under scrutiny this weekend, as exchanges emerged showing the former health secretary had personally referred an old neighbour wanting an NHS contract on to an official.”

Any credible suggestion of impropriety should be properly investigated. But it is worth recalling that there are several less nefarious reasons why a member of the Government might have continued to use their personal email address.

Two are utterly mundane. The first is personal habit – anyone who has got used to conducting work via their personal phone or email before having to switch to an official one can attest to how difficult it can be to break the habit, especially if those whom you have worked with before continue to reach you on them. Getting an email via your private account and replying via the official one can feel a laborious process.

Second, ministers are also political figures and there are restrictions on using government accounts for party business. No excuse for failing to use them for official communications, of course, but another factor making it harder to make a change in habits stick.

But the third, and most serious, is that ministers and their advisers have an understandable desire to speak frankly when developing policy and responding to crises. And in the era of Freedom of Information, this is very difficult. (Not that personal communications are exempt from the legislation, mind you.)

This is not an original observation. Charles Moore wrote almost ten years ago about how “the pursuit of transparency is leading to dishonesty” and intrigue:

“Because of the cant in which modern administrative documents are expressed, words like “openness” and “transparency” will be spattered over thousands of pages. But there will be no such openness or transparency. The big decisions will all have been made in whispers in a corridor, or abbreviated in a text message. To find out what happened, the biographer will have to rely solely on the fallible memory of elderly ex-ministers and officials.”

Nor is this observation confined to historians and reactionaries. Tony Blair, the architect of the Freedom of Information Act, is scathing about it in his autobiography:

“Freedom of Information. Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naive, foolish, irresponsible nincompoop.  There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it all.”

His argument is twofold. First that for all the warm rhetoric around ‘transparency’, FoI requests are filed only extremely rarely by members of the public. They are instead almost exclusively a tool for journalists and campaigners. One may feel this is entirely legitimate whilst recognising that it is not how the legislation was originally conceived.

But he also shares Moore’s view that it has both occluded and even degraded the conduct of government :

“Without the confidentiality, people are inhibited and consideration of options is limited in a way that isn’t conductive to good decision-making. In every system that goes down this path, what happens is that people watch what they put in writing and talk without committing to paper. It is a thoroughly bad way of analysing complex issues.”

It isn’t difficult to see how this tendency might have been especially pronounced in a pandemic, when ministers were under intense pressure to find quick solutions to unanticipated problems but knew their choices would be picked over at leisure by commentators and campaigners at a later date.

Of course if it turns out that Hancock or anyone else in government was doling out public contracts improperly, that will highlight the downside of ‘opaque government’.

But even if there are arguments on both sides, we should recognise that there is very often a trade-off between efficacy and accountability. And that the media tends to ignore this when it champions any policy, be it putting cameras the House of Commons or televised leaders’ debates, that give them more material and enhances their role in our democratic system.

Did Brexit cause the dysfunction of the past five years – or merely expose deeper weaknesses?

23 Jun

It is strange to think that five years – the distance between today and 23 June 2016, the day we voted to leave the European Union – is only as long as the lifespan of the Coalition Government.

Sitting up in a borrowed office with the rest of the ConHome team, watching Birmingham go for Leave, feels like a life-age ago, whilst the events of David Cameron’s government (AV referendum, pasty tax, Ed Stone…) all blend into one another.

Perhaps its the sheer pace of events. Cameron oversaw a relatively conventional five-year term in office between 2010 and 2015, whereas since 2016 we’ve had two general elections and two new prime ministers, as well as the excruciating chaos of the 2017-19 Parliament.

Yet for all that the outcome of Brexit can sometimes feel – unless you’re in Northern Ireland – a little anti-climactic. It surely helps that it was so thoroughly overtaken by the Covid-19 pandemic, but given the wilder promises and threats of the campaigns and the high-octane brinkmanship that preceded the last election, there don’t seem to have been any huge dividends or catastrophic costs as yet.

This fits the thesis advanced by Tom McTague, who has suggested that it will take decades to tell whether or not Brexit was a good move or not because the measure will be the cumulative impact of lots of relatively small decisions made possible by de-alignment. Boris Johnson understandably focuses on the vaccine rollout, a stand-out success. His critics point to the Irish Protocol, which is threatening British trade with our own territory, undermining Northern Ireland’s place in the UK, and plunging the Province into crisis.

Another question it may only be possible to answer over the long term is the extent to which Brexit caused the divisions wracking the country, as opposed to merely exposing them.

For example, the pressure of trying to steer a controversial Withdrawal Bill through a divided Parliament proved more than the rules and traditions of the House were able to contain, with dire constitutional consequences. But whilst John Bercow may not have had the opportunity to abuse his office so spectacularly in different circumstances, his elevation to the Speakership preceded them – and as Chris Mullin recorded in his diaries. Bercow was enthroned by Labour MPs deliberately subverting the traditions which governed the post in order to make trouble for an incoming Conservative government.

Likewise it is fashionable to blame Brexit for driving the breakup of the UK, but outwith Northern Ireland (which I have covered extensively elsewhere) it is far from obvious this is the case. Nicola Sturgeon signally failed to capitalise on the referendum result, and it took the pandemic to revive the fortunes of the nationalists in Edinburgh and Cardiff – another issue where what was really exposed was the deep and long-standing division built into the devolution settlement.

And even on the thorny question of Ulster, the attitudes which saw Theresa May stumble into the backstop trap – ignorance of the proper extent of Britain’s obligations under the Belfast Agreement, a Northern Irish Office which understood its role as treading water until we ceded the Province – predate Brexit and were slowly eroding Northern Ireland’s position in the UK years before the referendum. It is easy to imagine that without it we would not have ended up confronting the problem, as David Frost and Brandon Lewis are trying to do.

There is no denying that the crises of the past five years have brutally exposed the shortcomings of the British state and much of its governing class. But we should not flatter those who left our country in that state by allowing them to shift the blame entirely onto those who put their handiwork to the test, and found it wanting.