David Gauke: Rwanda and the ECHR, the Protocol and law, steel and the WTO. All show that sovereignty isn’t absolute.

20 Jun

David Gauke is a former Justice Secretary, and was an independent candidate in South-West Hertfordshire at the 2019 general election.

The curious thing about being in Ministerial office is how much power other people have. There is something you want to do – or something you want to stop – and despite your supposedly exalted position it turns out that not everything is under your control. It can be annoying.

The most contentious element of this phenomenon in recent times has, of course, been membership of the European Union. This meant that a large number of policy options that Ministers might want to pursue were no longer available. It did not matter who voters elected, the Government was not permitted, for example, to scrap VAT on domestic fuel. This, it was argued, is undemocratic and therefore we should take back control and leave the EU. It was an argument that many found persuasive in the 2016 referendum.

One point that has been highlighted in recent days is that membership of the European Union is not the only constraint on the policies that the UK government can pursue. In the past week, we have had controversies over compliance with the EU Withdrawal Agreement and Northern Ireland Protocol, the European Convention on Human Rights and the rules of the World Trade Organisation.

In each case, the Government finds itself in the position of wanting to do something but is constrained by international obligations. It does not want border checks in the Irish Sea but such checks are imposed by the Northern Ireland Protocol. It wants to deport asylum seekers to Rwanda but may only do so in accordance with the provisions on the European Convention on Human Rights. And it wants to maintain tariffs on Chinese steel but may only do so in accordance with WTO rules.

The Government has a problem with each case and with each case it is taking a different approach. With the Northern Ireland Protocol it is trying to argue that there is a legal justification for unilaterally changing the terms of the agreement (its arguments are widely seen as hopeless, but let us not dwell on that here). In other words, it is looking to change the obligations placed on it. On the ECHR, it is going through the legal process arguing that it is complying with existing law. And, from what we know about Lord Geidt’s resignation as the Prime Minister’s Ethics Adviser, the Government appears to be considering openly breaching WTO rules.

If the Government were fully to embrace the logic of ‘take back control’ it would simply pursue the policy it wanted and damn the consequences. If the UK Government with the confidence of the House of Commons wants to remove border checks, deport asylum seekers and subsidise domestic steel, why should it not?

At this point, we collide with reality. An absolutist approach to sovereignty comes at a very high cost.

The Northern Ireland Protocol was designed to resolve a problem that ultimately allowed the Trade and Cooperation Agreement to be concluded. This gives the UK and the EU tariff-free and quota-free access to each other’s markets. Some of us think this deal is inadequate but it is still of value. Jettison the Protocol, and we risk losing tariff-free and quota free access to EU markets.

The ECHR is less transactional in its nature, but was driven forward by the UK during the 1950s as a means of protecting individual rights at a time when Europe’s future as a liberal democracy was far from assured. It has helped secure liberal values, exerted pressure on authoritarian regimes and, more recently, played a crucial role in agreeing a framework to Northern Ireland that has ensured peace.

As for the WTO, its rules based system has enabled free trade to thrive in recent decades which has contributed to our own prosperity and lifted millions out of poverty across the globe. Protectionism is a bad policy but it can be popular. As my old friend, Daniel Hannan, points out, tariffs on Chinese steel polls well but results in higher prices for UK consumers. We have an expert Trade Remedies Authority that has looked at this, and advised that the tariffs should be scrapped, which we should follow. (There are times when policy based on evidence and expertise is preferable to adhering to the whims on public opinion, as Daniel most definitely did not put it.)

Not only would the UK be faced with immediate problems of retaliation and enforcement if were to step away from our international obligations but we would also be influencing the international environment for the worse. Other countries might follow suit, contributing to a breakdown in cooperation and trade. This is not in the interests of the UK or the world as a whole.

This is an argument that really should not be terribly contentious. Of course, we can have a debate about whether – in a specific case – the costs of restricting the actions we can take are justified by the associated benefits from the agreement we can reach with others but this should be a debate about trade-offs not absolutes. The challenge here is that this may not be possible in a post-Brexit world.

We are already hearing the argument being made – including, for example, by Suella Braverman, the Attorney General – that people who voted for Brexit will find it very hard to understand that the Government is not able to implement a policy it wants on immigration because it has been overruled by a European Court. There is increasing talk that the Conservatives might fight the next general election on a pledge to take the UK out of the ECHR, to ‘complete Brexit’ and fully take back control.

I have no doubt that is exactly how many Brexit voters will feel, just as many will feel that the UK Government should be able to subsidise UK steelworks and determine for itself how Great Britain-Northern Ireland trade should work. Maybe those are the voters the Conservative Party wishes to focus upon – I suspect they may be – but it would be a disastrous course of action.

To deliver good and effective government, it is necessary to accept that certain constraints apply, that sometimes sovereignty has to be compromised in return for international cooperation. Decisions in this area lie along a spectrum; this is not about absolutism.

This argument is, however, very hard to make if you have spent the last few years suggesting that any such restrictions on Ministers’ discretion as a consequence of our relationship with the EU constitutes an affront to democracy. Unless Ministers get a bit more grown-up in their rhetoric, they are going to set expectations at a level they cannot – and should not – meet.

The post David Gauke: Rwanda and the ECHR, the Protocol and law, steel and the WTO. All show that sovereignty isn’t absolute. first appeared on Conservative Home.

Geidt’s preface. What it said. And what it meant.

1 Jun

The preface to Sir Christopher Geidt’s annual report is a masterpiece of establishment prose. I offer a translation below.

– – –

He said: “This is my second Annual Report as Independent Adviser on Ministers’ Interests. It is issued alongside my third publication of the List of Ministers’ Interests, which I am pleased to have restored to their regular cycle. This report is also the first to be published on a new dedicated online presence for the office of the Independent Adviser and supported by dedicated staff, under my supervision. I have also had cause to provide formal advice to the Prime Minister on two occasions, and that advice has been published in a timely manner. At the time of writing, a further investigation is nearing the stages of completion.”

He meant: Most of your critics in the country, Parliament and the media believe that I let you off the hook over donations to refurbish the Downing Street flat, should have quit, get nothing from you – and am an establishment patsy. But I demanded and got that new online facility and some the new staff.  So sucks to them.

He said: “In the period under review, the Prime Minister has now implemented a number of changes to the office of Independent Adviser. These include amended Terms of Reference which were published on 27 May 2022. In a letter of 23 December 2021 to the Prime Minister, I wrote that, ‘I would expect by the time of my next Annual Report in April to be able to describe the role of Independent Adviser in terms of considerably greater authority, independence and effect’. This correspondence with the Prime Minister followed the discovery of material relevant to my initial investigation into the refurbishment of the private accommodation at 11 Downing Street that had not originally been disclosed to me. The Annual Report considers the matter in detail.”

He meant: “In addition to demanding new support I also demanded new powers – and told you that I wanted the whole bang shoot done and dusted by April.”

He said: “In the event, I was unable to publish my Annual Report last month as the Government had not yet published its amendments. Instead, I resolved to publish in any event during the month of May, one calendar year on from my original report. Now that the Government has issued its Policy Statement in the past few days, I have reflected on those changes to my Terms of Reference and other aspects of the Prime Minister’s undertaking last December. Again, these are covered in detail in the Annual Report.”

He meant: “I’m doing my best to show my critics that I’m the big swinging dick around here, but you keep monkeying me around – which is why this report’s a month late.”

He said: “Granting the Independent Adviser an independent right to initiate inquiries into ministerial conduct has been called for over many years. The changes now offered by the Government are at a low level of ambition. Nevertheless, given the new provision for greater transparency in the event of a Prime Minister intervening to prevent an independently-initiated inquiry from proceeding, I believe that under normal circumstances this would be a workable scheme. The grounds for refusal by a Prime Minister would need to pass a very high standard, such as national security. Even then, an Independent Adviser would now generally be able publish the reasons for a Prime Minister’s refusal.”

He meant: “I want powers to initiate investigations into you.  You won’t give me even half the loaf.  But I’m making the best of as much of it as you’ve said you’ll give me.”

He said: “The circumstances of the period covered by my report, however, have been far from normal. For much of the year, the conduct of the Prime Minister himself has potentially been subject to consideration against the requirements of the Code. Accordingly, and whether unfairly or not, an impression has developed that the Prime Minister may be unwilling to have his own conduct judged against the Code’s obligations. The test for the credibility of these new arrangements is whether they are sufficient to command public trust in the independence of the Independent Adviser. This must be accompanied by a willingness of those subject to the Code, including the Prime Minister, to justify their conduct – in the light of the provisions of the Code – to Parliament and to the public. For example, this may be an explanation of how they believe that their behaviour is consistent with the Code, or an acknowledgement and explanation of why they have fallen short of its standards.

He meant: “As I say, your critics believe that I’m an establishment patsy.  I keep trying to show them that I’m not.  To do so,  I need a lot more help from you.”

He said: “It may be especially difficult to inspire that trust in the Ministerial Code if any Prime Minister, whose code it is, declines to refer to it. In the case of the Fixed Penalty Notice recently issued to and paid by the Prime Minister, a legitimate question has arisen as to whether those facts alone might have constituted a breach of the overarching duty within the Ministerial Code of complying with the law. It may be that the Prime Minister considers that no such breach of his Ministerial Code has occurred. In that case, I believe a Prime Minister should respond accordingly, setting out his case in public.”

He meant: “I specifically asked you to say that you didn’t breach the code (if that’s what you’re set on claiming) in your response to Gray’s report.  Which you duly didn’t do – so giving my critics yet more ammo, which further gets my goat.”

He said: “This matters to the integrity of the Independent Adviser who, otherwise, might until recently have had to seek a Prime Minister’s consent to make inquiries into a Prime Minister’s conduct. In the present circumstances, I have attempted to avoid the Independent Adviser offering advice to a Prime Minister about a Prime Minister’s obligations under his own Ministerial Code. If a Prime Minister’s judgement is that there is nothing to investigate or no case to answer, he would be bound to reject any such advice, thus forcing the resignation of the Independent Adviser.”

He meant: “You’re playing with fire, sonny. Don’t fool yourself into thinking that because I’m a gent you can mess me around in the way you messed our beaks at Eton around – and everyone else since.  I can have your balls for breakfast.”

He said: “Such a circular process could only risk placing the Ministerial Code in a place of ridicule. Instead, and since the point when the inquiries by the Cabinet Secretary (later conducted by the Second Permanent Secretary) and the Metropolitan Police were embarked upon, I have repeatedly counselled the Prime Minister’s official and political advisers that the Prime Minister should be ready to offer public comment on his obligations under the Ministerial Code, even if he has judged himself not to be in breach. This has been my standing advice, which I was assured had been conveyed to the Prime Minister. Its purpose has simply been to ensure that the Prime Minister should publicly be seen to take responsibility for his own conduct under his own Ministerial Code. That advice has not been heeded and, in relation to the allegations about unlawful gatherings in Downing Street, the Prime Minister has made not a single public reference to the Ministerial Code.”

He meant: “My resignation letter is drafted. Do you feel lucky, punk?”

He said: The Independent Adviser is neither the author nor the guardian of the Ministerial Code. Those roles properly belong to the Prime Minister. Nevertheless, it is reasonable for the Independent Adviser, consistent with his own obligations to uphold the Seven Principles of Public Life, to promote the integrity of the Ministerial Code and ensure that its provisions are applied fairly and transparently. I have set out my advice accordingly.

He meant: “You, sir, are not a gentleman.”

Politicians, not officials, are responsible for judging whether the Prime Minister’s behaviour is acceptable

21 Apr

According to Peter Hennessy, we are in “the most severe constitutional crisis involving a Prime Minister that I can remember”.

Hennessy, born in 1947, touches nothing that he does not adorn. He is a witty, erudite and penetrating historian of modern British politics, who in 2010 was elevated to the House of Lords, where he sits as a cross bencher, as Baron Hennessy of Nympsfield.

So Hennessy’s denunciation on Sunday of Boris Johnson on Broadcasting House, which begins at minute 34 of this recording, attracted considerable attention. He called the Prime Minister:

“…the great debaser in modern times of decency in public and political life and of our constitutional conventions, our very system of government.”

After giving an account of Johnson’s statement at Chequers on 12 April about the Fixed Penalty Notice imposed by the Metropolitan Police, Hennessy went on:

“The Prime Minister sealed his place in British history as the first lawbreaker to have occupied the premiership, an office he has sullied like no other, turning it into an adventure playground for one man’s narcissistic vanity. Boris Johnson has broken the law, misled Parliament, and has in effect shredded the Ministerial Code, which is a  crucial part of the spinal cord of the Constitution.”

All this is questionable, but the only part I wish to question here is the last bit, about the Ministerial Code.

Authorities on the British Constitution, of which Hennessy is unquestionably one, tend to regard any breach of the Ministerial Code as an offence which merits the severest sanction.

They regret that the Prime Minister is the arbiter of whether the Ministerial Code has been broken: Hennessy says this is the “the great weakness of the system”.

They also object that only the Prime Minister can order an investigation into whether the Code has been broken. The Institute for Government is among those urging that Lord Geidt, the Independent Adviser on Ministers’ Interests, should have the right to commence investigations of suspected breaches.

Members of the official class treat this proposition as self-evidently true. Rules, in their view, are made to be kept, and the guardians of the rules should be senior members of the official class.

But were it ever to be adopted, this reform would have the catastrophic effect of undermining political accountability.

The Prime Minister would no longer be responsible for deciding who will serve as a minister, and who to back or sack when it is alleged (as often happens) that a minister has offended against the Ministerial Code.

Let us glance at the Code for a moment. It is an odd mixture of pious aspiration and necessary practical guidance on what, for example, ministers should do about their financial interests.

In the fourth paragraph, we find the Prime Minister declaring that there must be “no leaking”. How many ministers would survive the strict enforcement of this clause?

And how many political journalists have never profited, and delighted to profit, from breaches of this part of the Ministerial Code? And do we really wish to return to the deep secrecy with which the British state once sought to cover up its incompetence?

Not long ago, a test case arose. Priti Patel, the Home Secretary, was accused of bullying. Sir Alex Allan, the Independent Adviser on Ministers’ Interests, was called in, and in November 2020 his ruling was published:

“My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect. Her approach on occasions has amounted to behaviour that can be
described as bullying in terms of the impact felt by individuals. To that extent her behaviour has been in breach of the Ministerial Code, even if unintentionally.

“This conclusion needs to be seen in context. There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time. The high pressure and demands of the role, in the Home Office, coupled with the need for more supportive leadership from top of the department has clearly been a contributory factor. In particular, I note the finding of different and more positive behaviour since these issues were raised with her.”

What should be done? This was a political decision. The United Kingdom and the European Union were approaching, under great pressure, the decisive moment in the negotiation about their future trading arrangements.

If Johnson had sacked Patel – a devout Eurosceptic – this would undoubtedly have been portrayed as the British Government starting to fall apart, and there would have been a greater danger either of reaching a less favourable settlement with Brussels, or of reaching no settlement at all.

What was the Prime Minister to do? He had to weigh up many different factors, and there was no easy answer. This was ultimately a question of political judgment, for which he would be held accountable. He stood by Patel, and Sir Alex Allan resigned.

Those who elevate obedience to the Ministerial Code above all other considerations fail to see how difficult, and how political, such judgments are.

In July 2018, three days after resigning from the post of Foreign Secretary, Johnson signed a new contract with the Daily Telegraph to write a weekly column, for which he was to be paid about £250,000 a year.

The Advisory Committee On Business Activities (ACOBA) said this was “unacceptable”: according to the Ministerial Code, he should have consulted the committee first about any paid employment he took in the two years after leaving the government, and former ministers were also required to observe a three-month cooling off period before they accepted any paid work.

Johnson got away with breaking the Code. From a strictly official point of view, he ought not to have got away with breaking it.

But as a politician, one of his selling points is that he believes rules are made to be broken. To the official mind, this attitude is unacceptable.

In reality, however, a degree of flexibility is sometimes required. One of the glories of our Constitution is that is allows for such flexibility, because not all of it has been written down.

Prigs and pedants who suppose themselves brilliant enough to draw up rules which will cover every eventuality cannot see that in a free and democratic country, a degree of latitude, even of uncertainty, is an advantage rather than a scandal.

Ultimate responsibility should rest with elected politicians, not with unelected officials.

The acceptability of Johnson’s conduct will be decided by Conservative MPs, who in turn will consult public opinion – which is sometimes not fully aligned with the Ministerial Code.