Dear Mr Gove, bad Ministry of Justice policy making has not gone away

4th April 2016

Another policy failure of the Ministry of Justice becomes apparent: over at the Law Society Gazette, John Hyde has detailed how the MoJ has collected only a small proportion of the criminal courts charge.

The charge has now been terminated; but the underlying problem remains: the MoJ is simply not any good at policy making and policy implementation.

The MoJ adopts a policy, usually without assessing evidence or even thinking things through, and it then “presses on” with the policy regardless of onlookers pointing out that, well, the policy will not work.

The policy is then eventually reversed.

This is not just a one-off; the cycle of policy adoption-failure-reversal has been a feature of the MoJ for as long as one can remember.

Michael Gove has been Justice Secretary and Lord Chancellor for less than a year. He has started well as the ministerial head of the department, and he has been savvy enough to work out ways of ending most of his predecessors more idiotic policies.

To go by the political news, however, it seems like Gove is now becoming preoccupied with the upcoming “Brexit” referendum vote.

The worry is that Gove somehow thinks the problem of crap MoJ policy making has been solved. and that he is thereby free to concentrate on other political matters.

The problem has not been solved; as not being any good at policy making and implementation (whilst arrogantly ignoring anyone pointing this out) is the natural state of the MoJ.

Without a careful eye, bad policy making will return.

And, if so, Gove will no longer have the luxury of focusing on Breixt or even the Tory leadership succession.

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Five things about David Cameron and sovereignty

9th March 2016

Here are five things to remember when you hear the Prime Minister praise the “sovereignty of parliament”.

First, ministers and officials are encouraged to use statutory instruments as much as possible, which do not get proper parliamentary scrutiny.

Second, the government has sought to cut the “Short money” which funds the scrutiny work of opposition parties in parliament.

Third, the government is seeking to push through the Investigatory Powers Bill through parliament at speed, just as it did with the Data Retention and Investigatory Powers Act.

Fourth, when the House of Lords (sensibly) rejected cuts to certain benefits (which were later dropped), Cameron sought to limit the power of the Lords.

Fifth, when the Speaker of the House of Commons was seen as too independent, the (then Coalition) government under Cameron attempted (and failed) to get the Speaker sacked.

Take together the increasing use of secondary legislation, the attempts to cut Short money, the rushing of primary legislation, the attempt to limit the Lords, and the plans to eject the Speaker – and the evidence does not show that Cameron and his government have any sincere respect for the sovereignty of parliament.

In fact, the evidence contradicts the notion that Cameron and his government believe in the rights and prerogatives of the legislature.

And this is without the ongoing tendency for major announcements to be leaked to the press, or to be revealed on chat shows, rather than on the floor of the Commons.

In essence, it is not the sovereignty of parliament which is being claimed by Cameron and his ministers, but the sovereignty of the government once it has a Commons majority; what a former Conservative Lord Chancellor called an “elective dictatorship“.

The rhetoric may be about the sovereighty of parliament, but the practice of the current government (as with previous governments) is to undermine parliament in as many ways as possible.

It is not Brussels which is the greatest enemy of the Westminster parliament but Whitehall.

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Regular blogging at Jack of Kent is made possible by the kind sponsorship of Hammicks Legal Information Services.  

If you value this this blog and its free content, please do two things.

First, click on this link to Hammicks and have a browse.

Second, please subscribe for alerts for my new posts at Jack of Kent and the FT, and anywhere else.  Just submit your email address in the “Subscribe” box on this page.  Twitter and other social media platforms may not always be around – and so by subscribing you will get alerts for my posts.

“Privacy is Surveillance” – Part 1 of the Investigatory Powers Bill

2nd March 2016

Yesterday the government put the Investigatory Powers Bill before parliament.

(Note it is not a “draft” Bill – that was the last one. This is now the Bill (which is, in turn, a draft Act).)

The parliament webpage for the Bill is here and it is worth bookmarking, as website will track the passage of the Bill and will provide links to the debates and other materials.

The Bill itself is here  and the “explanatory notes” are here.  (The explanatory notes are to explain the Bill – but they are not part of the Bill, will not become law, and will not bind any court.)

It is a long and complex Bill – many of the clauses are highly technical even before you try and fit the clauses together. (In this way, writing legislation or any other complicated legal document is lot like coding.)

It looks like government is seeking to rush the Bill through at speed.  Of course, such disregard for parliament is contrary to this government’s lofty assertions about “parliamentary sovereignty”.  There is a serious question as whether parliament can properly scrutinise the Bill.

In this post, I do not even try to scrutinise the Bill.  I am going to do something far more trivial but which may (or may not) show something telling about the Bill.

You will see that “Part 1” of the Bill is called “General Privacy Provisions”.

PrivacyIsSurveillance

From a liberal perspective, this is an encouraging signal.

A search for “privacy” in the Bill, however, reveals that other than in clause 1(3)(a) – in the image above – there are no mentions of “privacy” anywhere else in the Bill, other than in titles.

Of the fourteen mentions of “privacy” overall:

one is the title of Part 1;

one is the title of Part 1 in the contents page;

nine are mentions of the title of Part 1 in the headers;

one is at clause 1(3)(a); and

two are in mentions of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (S.I. 2003/2426).

So “privacy” is mentioned more often in the headers to pages than in the Bill itself, and it is only once used anywhere in the Bill when it is not in a title.

It is almost as if some bright spark at the Home Office thought that privacy concerns could be addressed by simply adding “privacy” to the title of Part 1 of the Bill.

Of course, this is not a complete way of assessing how privacy is addressed in the Bill – privacy points can be covered without necessarily using the word, and a search for “privacy” in the (non-binding) explanatory notes is an instructive exercise.

But, as far as Part 1 of the Bill is concerned, the motto could well be “Privacy is Surveillance” – as one famous political observer would have put it.

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Law and policy round-up: three points about Cameron’s prisons speech

9th February 2016

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Prisons policy

Yesterday was a busy and perhaps significant day for prisons policy.

The Prime Minister gave a speech devoted to the subject.  The speech was even trailed with two government announcements here and (on treatment of pregnant women in prison) here.

Frances Crook of the Howard League gave the speech a cautious welcome and Ellie Dunt, also of the Howard League, correctly observed that the most significant thing about the speech was that the Prime Minister was giving it.

There are three things worth noting about the speech and what may be behind it.

First, prisons are expensive even if “law and order” rhetoric is cheap. Wise politicians realise this and know that the current approach to prisons policy is financially unsustainable, regardless of what lines voters and tabloids clap along with.  The current policy also makes no real sense from a crime prevention perspective and is best seen as one devised by a mischievous demon.

Second, there is a move in right wing thought against custodial sentences as the default punishment for crime, especially in the United States.  (I wrote about this in 2013 at the FT.)  This development in right wing thought may be having an influence on Michael Gove.

Third, if such a speech is indeed the political price Micheal Gove has extracted from David Cameron for support on the EU referendum issue, then it is a good bargain.

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The prisons policy of a mischievous demon

8th February 2015

Prisons policy is in the news today.  This is from my 2013 post at FT on custodial sentences:

Here is a thought-experiment: imagine that you have asked some mischievous demon to conceive the most counter-productive way of dealing with crime.

What fiendish scheme would this diabolic agent devise?

The demon could suggest a system:

– where offenders are kept together with more serious and experienced criminals for months or years, and so can learn from them;

– where the offender is taken away from any gainful employment and social support or family network;

– where the offender is put in places where drugs and brutality are rife;

– where the infliction of a penalty can make the offender more, and not less, likely to re-offend; and

– where all this is done at extraordinary expense for the taxpayer.

A system, in other words, very much like the prison system we now have in England and Wales.

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FT post on why the reference to ‘international law’ in the UK’s Ministerial Code matters

26th October 2015

Following on from the story that was broken by my friend Nick Cohen on the deletion of regard to “international law” from the Ministerial Code, and also in response to the extraordinary public intervention from the former Treasury Solicitor, I have done a brief post over at the FT.

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Michael Gove “picks a fight” over the MoJ’s Saudi contract bid: the background

13th October 2015

The overnight news was dramatic: the Lord Chancellor and Justice Secretary, Michael Gove, has “picked a fight” in Cabinet.

And the subject of this political spat?

It would appear that it is the commercial bid by the Ministry of Justice (MoJ) to assist the prison service of Saudi Arabia, something I have been blogging about here and at the FT since January.

This post sets out the general background to this political development: in essence, everything you need to know.

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The overnight news

The story broke in the Times, with a page one news feature and a (very) well-informed opinion piece inside.

The front page of the print edition (hat-tip Nick Sutton):

20510 Times3

And here is what the online story looks like:

201510 Times2

And the opinion piece:

201510 Times1

(Please now click and read the originals if you can, even it involves paying: journalism costs money, whatever its source.)

The key facts in the Times story are as follows:

– there is a “cabinet row” between Gove and Philip Hammond, the Foreign Secretary;

– Gove has demanded the MoJ commercial bid be scrapped;

– Gove has circulated a memorandum to this effect;

– the dispute was raised at a meeting of the “National Security Council”

– the Prime Minister has had to determine the dispute, and has insisted that the commercial bid go ahead;

– Sajid Javid, the Business Secretary, supports Gove;

– Hammond warned that cancelling the deal would make the UK look an untrustworthy ally;

– and so, in summary, the Foreign Office and the Prime Minister have overruled the MoJ.

The Opinion piece repeats these facts, and adds the following detail:

“There was a robust exchange of views,” says a Whitehall source who has seen the letters. “The MoJ had human rights concerns; the Foreign Office felt this would have far bigger ramifications.” Downing Street ruled that the Ministry of Justice must honour its bid. Unless something changes, Mr Gove will sign the contract any day now and British civil servants will spend six months working with one of the most barbaric prison systems in the world.”

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The “commercial bid” of the MoJ

So what is this about?

[Most of the information below is contained in and sourced in these previous posts: FT, January 2015Jack of Kent, February 2015,  FT, September 2015Jack of Kent, October 2015, and FT, October 2015 (yesterday).]

The “commercial bid” of the MoJ to assist with the Saudi prison service was one of a number of transactions proposed by a group of MoJ civil servants who called themselves “Just Solutions international” (or “JSi” complete with gimmicky lower-case “i”).

JSi was established in 2012, when Kenneth Clarke was Lord Chancellor and Justice Secretary, but it developed rapidly under his successor (and Gove’s predecessor) Chris Grayling.

The idea was that JSi would sell “expert” services to foreign governments in return for cash on a “commercial” (as opposed to a costs) basis.  The MoJ would thereby make money from the transactions.

Involved in the creation and promotion of JSi was PricewaterhouseCoopers.

The proposed Saudi contract was first mentioned (in passing) in a MoJ report to Parliament in December 2014.  That in turn was brought to the attention of David Hencke, who broke the story in January 2015.

The MoJ under Grayling continued with the bid (despite the public criticism), putting a final bid in around April 2015.

In May 2015, after the general election, Gove replaced Grayling.  Gove then quickly reverses a number of Grayling’s policies: see Joshua Rozenberg here.

In September 2015, the MoJ announced it is closing down JSi, but also that the Saudi commercial bid was too advanced to be stopped.

After a bit of digging, I was able to establish that one reason then given by the MoJ for not dropping the bid – “financial penalties” – was invalid (and this led to an amendment of the September announcement to parliament).  The MoJ then confirmed it had to continue with the bid because of the “wider interests” of the government.  Alan White at Buzzfeed reveals that MoJ (and Gove) wanted to drop the bid but could not.

At this stage, therefore, there was obvious tension between government departments. Tension is not new, of course.

But what then electrified the situation is that at the end of September 2015, the new Leader of the Opposition Jeremy Corbyn mentions the bid in his conference speech.

Corbyn demanded of the Prime Minister:

“And while you’re about it, terminate that bid made by our Ministry of Justice’s to provide services for Saudi Arabia – which would be required to carry out the sentence that would be put down on Mohammed Ali al-Nimr.”

And that in turn is the immediate background to the overnight news.

So: an issue of “reverse public procurement” (ie, public bodies seeking to sell goods and services) in a relatively small government department (in spending terms) leads to a political fight between the holders of two great offices of state – the Lord Chancellor and the Foreign Secretary – which the Prime Minister then has had to resolve in the face of criticism from the Leader of the Opposition.

And then someone tells the Times about this happening.

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Assessing the overnight news

Things do not end up on the front page of the Times by accident.

There are reasons why this story has hit mainstream media in this well-informed way, and in the manner it has.

The details of the contract bid, or the MoJ’s recent opposition to continuing with it, are not news.  It has previously been covered in detail by David Hencke, by me here and at the FT, and by Alan White at Buzzfeed.  It was not of particular interest to political correspondents and columnists.

What has converted it to front page news is that the bid and the MoJ’s opposition has become the stuff of a cabinet split.  One can guess who would benefit from such a story.

What appears to be the situation (and here I am only going on what is in the public domain) is that the issue is of natural interest to Gove (I do not doubt his sincerity in not liking this Saudi bid) but that it also is a useful political tool for him to use.

Gove did not have to close down JSi – the fact he did shows his general disdain for selling MoJ services to foreign despots, even though it shut off a potentially lucrative revenue stream to a cash-starved department.

It is also clear that the Saudi bid would have been stopped but for pressure from the Foreign Office.

And so it also serves Gove as a political weapon: it is reminiscent of how Gove used the faith school issue in Birmingham when he was Education Secretary.

Whatever the political realities of the matter, one thing is plain: the MoJ should never have got itself into the misconceived and illiberal position of making commercial bids to sell UK state services to repressive regimes.

Nothing good was to come of it.

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The “Bill of Rights” and a blank sheet of paper.

4th October 2015

There appears to be further slippage in the Tory proposals for repealing the Human Rights Act.

Look at the following three quotes (with an emphasis added to each one):

“The scrapping of the human rights act, a pledge included in the Tory manifesto, is one of the measures to be included in the prime minister’s plans for the first 100 days, when the Queen’s speech is delivered on 27 May.”

Guardian, 10th May 2015

“We will bring forward proposals on a Bill of Rights this autumn.”

Dominic Raab, MoJ Minister, House of Commons, 8th September 2015

“Mr Gove is also grappling with how to fulfil the Conservative manifesto commitment to replace the Human Rights Act with a British Bill of Rights. The consultation will, he says, be out “in a few months’ time”.

Interview with Michael Gove, Lord Chancellor, The Times, 3rd October 2015

You will also see the Tories have gone from a Bill in the Queen’s Speech, to “proposals”, to a “consultation”.

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So what is happening?

Why is repeal of the Human Rights Act proving to be the Godot of repeals?

“Estragon, sitting on a low mound, is trying to repeal the Human Rights Act. He pulls at it with both hands, panting.   He gives up, exhausted, rests, tries again.”

 

It is not difficult to imagine.

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In a room, somewhere in Whitehall, there is a desk and on that desk is a piece of A4 paper, and a pencil.

The paper has as a title “British Bill of Rights”.  It is otherwise blank.

Every so often, a person comes in to sit at the desk.  The person may be a civil servant or a minister or a special adviser; indeed, they may take turns.  The person picks up the pencil and looks at the paper.

From time to time, the person goes to start writing a draft clause but hesitates, and sighs.  And the paper remains blank but for the title.

Once, when news came in from Scotland and Northern Ireland, as to their opposition to repeal of the Human Rights Act, there was a flash of inspiration: the word “British” was crossed out, leaving “Bill of Rights”.

But for that, the page still remains blank.

“Never mind,” thinks the latest person in that room, “this does not need to be done for another few months”. 

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The constitutional and political reality is that, for the reasons set out in an earlier post, the repeal of the Human Rights Act and its replacement with a “Bill of Rights” – British or otherwise – will be a virtual impossibility this parliament.

It also remains difficult to see how a new “Bill of Rights” will be any different from the current Act.

Repeal is an easy thing to promise, and to promise it will always get easy Tory cheers and easy approving copy in the tabloids; but it is hard in practice.

So unless the Tories get a move on, it looks like the Act (which celebrated its fifteenth birthday of coming into force this week) will still be there at the 2020 General Election, and no doubt a promise to repeal it will then be in the 2020 Tory Manifesto.

And, if the Tories win, then the process of coming up with a replacement will start, all over again.

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Gove must sort out bad MoJ policy making if he is to uphold the rule of law

9th July 2015

Following-on from yesterday’s post on the causes and possible consequences of the current lawyers’ revolt, this is my post today at the Financial Times on why Gove must sort out bad MoJ policy making if he is to uphold the rule of law.

The conclusion reads:

FTpost