Category Archives: Relations Between Branches

Why do Cabinet Reshuffles take place and why is the ‘Night of the Long Knives’ so famous?

Harold Macmillan oversaw the Night of the Long Knives.

Cabinet reshuffles happen fairly regularly in the UK and take place for a number of reasons. But there has been no reshuffle anything like that which happened on 13th July 1962 when Harold Macmillan oversaw a reshuffle that was so brutal that it became known as the ‘Night of the Long Knives, after the infamous event of 30th June 1934 when Hitler’s SS purged the SA.

There are a number of reasons that a Prime Minister might want to reshuffle their cabinet:

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How significant are public inquiries in the UK?

Boris Johnson’s political legacy will be defined by COVID-19, not Brexit.

The last five years have been the most unpredictable in British political history. When Boris Johnson became Prime Minister in July 2019 he rightly believed that his legacy as Prime Minister would be determined by his ability to ‘Get Brexit Done’. He would never have imagined that his fate as Prime Minister would be determined by events that would begin, not in London or Brussels, but most likely in a small food market in Wuhan province, China.

COVID-19 has blown Brexit out of the water as a legacy issue for the current government. COVID-19 has been notoriously difficult to predict. Only one thing is really certain – it will end with what is likely to be the largest public inquiry in British political history. So what is a public inquiry and how significant are the in the UK?

The Background to Public Inquiries

A public inquiry is an official review of events organised by the government. The aim is to review the decisions taken in the cold light of delay and, as such, these inquiries need to be held after the event being investigated can reasonably be said to have concluded. Inquiries are usually headed by a respected member of society, notably by a Judge or an Ex-Civil Servant. Those inquiries led by judges are often called ‘judge-led’ inquiries, with a sense that having a judge lead a public inquiry gives it an even greater level of independence and legitimacy.

As PM, David Cameron was criticised for not fully implementing the recommendations of the Leveson Inquiry.

At the end of an inquiry a detailed report will be produced. This report will not only highlight issues from the event in question, but may also make recommendations for the future. These recommendations are not legally enforceable. However, they may create a political pressure on the current government to bring about a change based on the recommendations. As the government has set up the inquiry in the first place, it is often politically difficult for them to ignore the recommendations included in the report.

Examples of Famous Public Inquiries

  1. The Bloody Sunday Inquiry (often called the Saville Enquiry)

Chair: Lord Saville (Lord of Appeals Court and then Justice of the Supreme Court)

Dates: 1998-2010

Bloody Sunday was one of the most controversial events during The Troubles.

During the height of the Troubles in Northern Ireland up to 21,000 British troops were deployed in a peacekeeping operation. On the 30th January 1972 a march was held in Londonderry in protest of republicans who had been held without trial by the British government. The 1st Battalion of the parachute regiment were deployed to the area. On arrival the paratroopers were ordered to arrest rioters. The situation escalated quickly and a number of shots were fired by the British Army. In total, 26 people were shot and 14 people were killed.

Lord Saville was a Lord of Appeal when he chaired the inquiry.

The Saville report was published on the 15th June 2010. The report was clear that British Soldiers were to blame for the killings. Saville found that British soldiers on that day had “lost control” and that they should never have been in the Bogside area in the first place. The report also found that British soldiers had colluded to cover the truth in the aftermath of the incident. On the day that report was published David Cameron, just two months into his tenure as Prime Minister, addressed the House of Commons and apologised on behalf of the British Government:

The Saville Inquiry has been significant for a number of reasons:

  • It was the first inquiry to find British serviceman of wrongdoing during the Troubles.
  • It laid open British soldiers, and commanders, to separate criminal prosecutions.
  • It laid responsibility for the events at the door of soldiers and commanders on the ground, not on the policies of the British government.

Since the inquiry, only one soldier has faced prosecution. They are known only as Soldier F. They are facing prosecution on two murder charges.

2. The Iraq Inquiry (often called the Chilcott Enquiry)

Chair: Sir John Chilcot (Former Senior Civil Servant)

Dates: 2009-2016

Sir John Chilcot

The Chilcot Inquiry was set up in 2009 and was established to examine the circumstances behind the run-up, conflict and aftermath of the Iraq War. This was the second public inquiry into the Iraq War. The Hutton inquiry of 2003 considered whether or not the British government had deliberately exaggerated or “sexed up” evidence that suggested Iraq had weapons of mass destruction (which was the cornerstone of the British justification for the war). The Hutton inquiry had found the government innocent of any wrongdoing.

The Chilcot Inquiry lasted seven years and heard evidence from hundreds of witnesses, including Tony Blair and Alistair Campbell:

The report was published on the 6th July 2016 and comprised of 6,275 pages and 2.6 million words. Some of the damning findings of the report found were that:

  • The UK chose the course on invasion before peaceful options had been exhausted. Chilcot said “We have concluded that the UK chose to join the invasion of Iraq before the peaceful options for disarmament had been exhausted. Military action at that time was not a last resort.”
  • That the British intelligence agencies had produced ‘flawed information’ about Sadaam’s WMD programme.
  • The UK Government, under Blair, deliberately exaggerated the threat that was posed by Sadaam Hussein’s Iraq. The report said “the judgments about Iraq’s capabilities [military] capabilities were presented with a certainty that was not justified”.
  • Whilst the Inquiry refused to reach a judgement on the legality of the war, they did say that the circumstances in which the decision for war was made were not satisfactory. Chilcot said that the “process of deciding whether the war was illegal appeared “perfunctory”.
  • Post-invasion the UK’s influence on US strategic planning was extremely limited.
  • The UK military were ill-equipped for the operational roles in Iraq and that the government responded to slowly to changing risks, like the proliferation of IEDs (improvised explosive devices).

Following the publication of report, Tony Blair gave a speech, including taking questions, that lasted nearly two hours. Blair said that

“…For all of this I express more sorrow, regret and apology and in greater measure than you can know or may believe.

Only two things I cannot say.

It is claimed that by removing Saddam we unleashed terrorism in the Middle East today.

I profoundly disagree. Saddam was himself a wellspring of terror, a continuing threat to peace and to his own people. Had he been left in power in 2003, then I believe, for the detailed reasons I shall give, he would once again have threatened world peace, and when the Arab revolutions of 2011 began, he would have clung to power with the same deadly consequences as we see in the carnage of Syria; whereas at least in Iraq, for all its challenges, we have today a Government, recognised as legitimate, fighting terrorism with the international community in support of it.

Secondly, I will never agree that those who died or who were injured made their sacrifice in vain. They fought in the defining global struggle of the 21st Century against the terrorism and violence which, the world over, destroys lives and divides communities, and their sacrifice should always be remembered with thanksgiving and honour when finally that struggle is won, as it will be.”

One of the biggest points of significance about the Chilcot Inquiry was that it was widely accepted. Whilst it was criticised for taking seven years to publish its findings, the scope and comprehensiveness of the report gave it a legitimacy that previous reports into Iraq (like the Butler and Hutton Inquiries) simply did not have.

It seems likely that the COVID-19 inquiry will be similar in scope to that of Chilcott. Whilst this may confer on it some legitimacy, it may make it unlikely that it is published before the 2024 General Election – which may not be greeted particularly well by the electorate.

3. The Leveson Inquiry

Chair: Lord Leveson (Lord Justice of Appeal)

Dates: 2011-202

News International was (it is now called Newscorp) is owned by Australian mogul Rupert Murdoch, who also controls Fox News in the United States.

In 2007 two employees of News International (owners of the Sun, News of the World, Times and Sunday Times) were convicted of illegally intercepting voicemail messages for the purpose of writing news stories. At the time, News International claimed it was a one-off incident and not indicative of the wider culture of practices of the company. However, allegations surfaced that a number of celebrities had found information published in the newspapers that they believed could only have been conceivably obtained from voicemails left on their phone. These celebrities and public figures included: Prince William, Gordon Brown, Paul McCartney and Heather Mills and Hugh Grant. However, the known list extends to over 300. In 2009 the Guardian published a front-page article suggesting News International was guilty of wide-spread phone hacking and other illegal practices. However, it did not have the traction with the public that they had hoped for.

The British public initially found it difficult to get enraged about hacking celebrities, but did when they found out that Milly Dowler’s phone had been hacked.

Although this was clearly concerning, it was revelations in 2011 that a particular case really hit home to the public. In 2002, a 13 Year Old schoolgirl named Milly Dowler went missing. A huge manhunt took place. However, sadly, six months later her body was found not far from where she went missing. In 2011, lawyers for her family announced that while she was missing her mobile phone had been hacked into by Glenn Mulcaire, one of the News International employees found guilty in 2007. It was said that the hackers had deleted messages from her relatives on her voicemail. This meant that whilst her voicemail quickly became full, heartbreakingly, the fact that new messages could be left gave her parents hope that she was alive as she was apparently accessing her voicemails.

In July 2011 David Cameron David Cameron announced a public inquiry not only into phone hacking, but the wider relationship between the culture and ethics of the British Press and its relationship with different arms of the state, including government, parliament, and the police. He announced that the inquiry would be headed by Lord Leveson, who was then a Judge in the Court of Appeals.

The scope of the inquiry was huge. It was split into three clear sections:

  1. The relationship between the press and the public.
  2. The relationship between the press and the police.
  3. The relationship between the press and politicians.

In total there were 337 witnesses. Some of these were people who had been put in the public eye through no fault of their own. They included Sally and Bb Dowler (mother and father of Milly), Kate and Gerry McCann (mother and father of Madeleine McCann) and Chris Jeffries, who had been wrongly accused of murdering Joanna Yeates.

However, the inquiry also included a number of prominent celebrities and politicians, who gave compelling testimony about the intrusions of the press. These included:

Hugh Grant – Who said that he had no quarrel with reporting of times when he had broken the law, but believed the intrusion into his life by the tabloids was utterly illegal:

Steve Coogan – Who talked about how newspaper apologies were never adequate for the damage they had done:

Piers Morgan – In addition, Piers Morgan (Former Editor of the Mirror Newspaper who had allegedly used Phone Hacking) in which he refused to disclose his sources and appeared extremely combative throughout:

David Cameron – Who had to explain his close relationship with News of the World Editor, Rebekah Brooks:

The final report was published on November 2012. It was 2,000 pages long with a 48 page summary. It came to a number of conclusions including:

  • That Press Regulation in the UK was not competent. They recommended a new independent regulatory agency should be set up which would have the ability to levy fines and force papers to publish prominent apologies.
  • That the relationship between the Press and Police should be better regulated and that Data Protection Law should be more clearly followed.
  • It found that phone hacking was widespread and Leveson said:

” The evidence drives me to conclude that this was far more than a covert, secret activity, known to nobody save one or two practitioners of the dark arts”

The Conservative Government under David Cameron said that they welcomed the Leveson Report However, notably, they did not pass any legislation to enact the recommendations. In 2014 the Independent Press Standards Organisation (IPSO) was established to replace the Press Complaints Commission (PCC) that had clearly failed to adequately regulate the press. However, IPSO is controlled by the newspapers that it claims to regulate, it is not truly independent. Apologies have still appeared to be insufficient in magnitude, even when the story papers are apologising for has been on the front page of a newspaper.

In truth, despite the wide-ranging and significant recommendations of the Leveson Inquiry, its political impact has been quite limited. This makes a good example of how the non-binding nature of inquiries, and the length of time they take to conclude, can enable the government to avoid implementing real changes.

The Future COVID-19 Inquiry

There have already been petitions in the government website calling for public petitions into the government’s handing of the COVID-19 pandemic. At the time of writing there are two petitions calling for a public inquiry:

  • Hold a public inquiry into Government contracts granted during COVID-19 – 126,651 signatures (Link).
  • Hold a public inquiry into the handling of the COVID-19 crisis – 22,575 signatures (Link).

The government has committed to holding a public inquiry ‘at the appropriate time’ but has said that it will only turn its attention to this when the pandemic has been dealt with. Undoubtedly, they will be forced to hold a full-ranging inquiry and it remains to be seen whether this will be damaging to the government. Certainly, the government will be keen to delay this inquiry until after the 2024 General Election, but this may well be too late for public opinion.

Does appointing Senior Cabinet Ministers from the House of Lords undermine the democratic legitimacy of the government?

The Commons and Lords, alongside the ‘Crown in Parliament’, make up the legislature.

Britain is a parliamentary democracy. This means that the executive branch is formed from the legislature. In addition, the executive branch must, through the mechanism of confidence motions, be able to show that it has the confidence of the legislative branch. In Britain, there are two chambers which make the up the legislative branch – the Commons and the Lords.

Britain is also a representative democracy. The legitimacy of the government is derived from the fact that that it holds the confidence of the House of Commons. However, by extension, this also means that it has the confidence of the electorate. This is why under the Fixed-Term Parliament Act (2011) if a government cannot keep the confidence of the House of Commons, a new General Election must be called.

Arguably, however, the legitimacy of government is weakened when members of the House of Lords are appointed to positions in government and particularly to those senior positions within the Cabinet.

Jeffrey Archer remained a peer whilst spending time in prison.

Firstly, one constitutional concern is that members of the House of Lords are not directly accountable to the electorate. Peers hold their position virtue of appointment and, until recently, held that position until they died. Historically, this has led to the continuance of members in the House of Lords with questionable credentials. These include Lord Archer who in 2001 was sentenced to four years imprisonment for perjury and perverting the course of justice after being found guilty of lying in a libel trial in 1987. Jeffrey Archer, however, remains a member of the House of Lords.

The joint appearance of Ian Hislop and Mary Archer, Jeffrey Archer’s wife, on Question Time led to one of the more awkward moments in British television history.

Recent legislative changes have altered this slightly. The House of Lords Reform Act (2014) allowed members of the House of Lords to resign. In addition, the House of Lords (Expulsion and Suspension) Act in 2015 allowed for the House to expel or suspend members (but not retrospectively). As of February 2021, 130 peers have resigned or retired from the chamber and it seems to have been a popular option with members.

Secondly, Members of the House of Lords are arguably not able to be effectively scrutinized. Importantly, despite mechanisms of scrutiny being similar as in the Commons (question time, committees and written questions), members of the Lords cannot be directly scrutinised by elected members (apart from in rare Joint Committees).

Lord Salisbury was the last peer to govern as Prime Minister.

These issues have led to the development of certain conventions regarding the House of Lords. Firstly, no Prime Minister has governed from the House of Lords since Lord Salisbury in 1902. The only minor exception to this was Alec Douglas-Home who became Prime Minister whilst a member of the House of Lords. When he became Prime Minister in 1963, he was a member of the House of Lords. However, on becoming PM he renounced the title and won a by-election to a safe seat in November 1963 (incidentally, also the only time a sitting PM has ever been involved in a by-election). Secondly, it has also become a convention that holders of the Great Offices of State (Prime Minister, Foreign Secretary, Home Secretary and Chancellor of the Exchequer) do not sit in the House of Lords. The last holder of a Great Office to hold it from the House of Lords was Lord Carrington in 1982.

However, this does not mean that Cabinet Members, sometimes significant Cabinet members (or Cabinet attendees), come from the House of Lords. The first ministries of the following governments had the following Ministers from the House of Lords:

John Major 1990

Cabinet Members: Lord Mackay (Lord Chancellor) and Lord Wadington (Leader of the House of Lords).

Tony Blair 1997

Cabinet Members: Lord Irvine (Lord Chancellor) and Lord Richard (Leader of the House of Lords).

Also attending Cabinet: Lord Williams (Attorney-General).

Gordon Brown (2007)

Cabinet Members: Baroness Ashton (Leader of the House of Lords).

Also attending Cabinet: Lord Grocott (Government Chief Whip in the Lords), Baroness Scotland (Attorney-General) and Lord Malloch-Brown (Minister for the United Nations).

David Cameron (2010)

Cabinet Members: Lord Stratchlyde (Leader of the House of Lords) and Baroness Warsi (Minister without Portolio).

Theresa May (2016)

Cabinet Members: Baroness Evans (Leader of the House of Lords).

Boris Johnson (2019)

Cabinet Members: Baroness Evans (Leader of the House of Lords) and Baroness Morgan (Secretary of State for Digital, Media and Sport).

Also attending Cabinet: Lord Goldsmith (Minister for Environment, Food and Rural Affairs).

(Note, the office of Lord Chancellor had to be held from the House of Lords and until the Constitutional Reform Act (2005) was very significant. Following this, the Justice Secretary took the majority of political roles, and the Lord Chancellor became a more symbolic position).

As the above shows, the numbers of Cabinet Members of the Lords is generally low and most have been members that have to come from the Lords because of the nature of the role (Lord Chancellor, Lords Leader and Lords Speaker).

The Brexit Department existed from July 2016 until January 2020.

However, recent events have put this issue into sharp focus. In July 2016 the government of Theresa May established the Department for Exiting the European Union to oversee Britain’s departure from the EU. This was be led by a Secretary of State (informally called the ‘Brexit Secretary’) who became a Cabinet Member. However, on  31st January 2020, the department and office was a abolished (this was meant as a clear political sign that Britain had left the European Union).

However, the transition period and the ongoing trade negotiations make it very clear that, whilst Britain has left the European Union, creating its ongoing relationship with the EU is still very much a work in progress. With this in mind, Boris Johnson recently appointed Lord Frost (Britain’s Chief Brexit Negotiator) to the Cabinet. Frost will replace Michael Gove as the leading Cabinet authority on Brexit.

Lord Forst (centre) was recently appointed to the Cabinet.

As such, he is undoubtedly the most prominent Peer to sit in the Cabinet since Lord Mandelson became Secretary of State for Business in Gordon Brown’s 2008 reshuffle. Despite Frost’s undoubted experience, there are fears that such an important role should not be held by someone who cannot be directly scrutinised by elected representatives. Labour’s Emily Thornberry said:

” [he is] someone who has never been elected by anyone in this country, and won’t be accountable in the House of Commons to any of us who have”

However, conversely, Frost was Britain’s Chief Brexit Negotiator before his appointment to the Cabinet. It is arguable that his appointment to the Lords at least provides some scrutiny, if not the direct scrutiny from the House of Commons that would be ideal.

Perhaps more worryingly for the government, Frost’s appointment has not been an isolated example. Boris Johnson has appointed a number of members of the House of Lords to lead significant government departments. Controversially, he appointed Baroness Morgan to be Secretary of State for Digital, Media and Sport. This was controversial because she had chosen to stand down as an MP, but was kept in post irregardless. In addition, he was criticised for the amount of power granted to unelected SPADs like Dominc Cummings.

In the UK, as opposed to the US for example, the appointment of Cabinet Members is entirely down to the Prime Minister’s Royal Prerogative powers. Parliament is not to asked to ratify a Cabinet appointment and nor can it stop one being taken up. It is arguably a worrying trend that the last few years have seen a growth in senior Cabinet members coming from the House of Lords.

William Hague is one of the ex foreign secretaries in the House of Lords.

However, importantly, these members are scrutinised in their government roles. They face Question Time from other Lords, they face written questions and appear in front of Select Committees. In fact, in many ways, scrutiny might even be better in the Lords! For example, currently in the House of Lords there are 8 current ex-EU commissioners in the House of Lords. In addition, there are 4 ex Foreign Secretaries in the Lords. In addition, the House of Lords has a permanent European Union Committee with four sub-committees. Frost may feel he is under too much scrutiny in the Lords! Yet, Frost will not face questioning from from elected MPs and fundamentally this might be seen to undermine democratic legitimacy.

Interestingly, in 2009 the Business and Enterprise Committee suggested that the easiest way to fix this would be to allow Lords to appear from the Despatch Box in the House of Commons. This was discussed by the then Speaker Jon Bercow, but nothing more came of the suggestion – again a seeming parliamentary example of tradition overruling good governance.

The Government acted unlawfully over PPE contracts – An example of Judicial Review

The High Court heard an important judicial review this week.

The COVID-19 pandemic mandated a huge increase in government awarded contracts – ranging from the testing systems, to vaccines and to PPE. A High Court Judgement this week has found that the government acted unlawfully in awarding some these contracts and it is an excellent and up to date example of Judicial Review.

Since the start of the pandemic, there have been concerns that contracts relating to COVID-19 have been awarded not because the tender offered a superior service, but because of pre-existing relationships between those applying for the contract and government ministers.

The Good Law Project are a promotional pressure group.

The particular case in question was bought by the Good Law Project (a promotional pressure group) and the issue involved contracts awarded by Matt Hancock’s Department of Health and Social Care (DHSC). The Good Law Project is a non-profit group whose website states that its purpose is as follows:

Our mission is to achieve change through the law.

We defend, define and change the law to uphold democracy, protect the environment and ensure no one is left behind.

The basis of the legal challenge was that research had shown that the DHSC has spent £15 billion on PPE contracts but that only £2.6 Billion of that spending had been published. However, government regulations specifically state that any spending of more than £10,000 has to be published within 30 days of the contact being awarded.

The Good Law Project noted three examples whereby the government had fallen foul of its own regulations to publish the contracts:

  • £252 Million contract for facemasks with Ayanda Capital.
  • £108 Million contact with Clandeboye Agencies.
  • £345 Million contact with a company called Pestix.

In addition, the Good Law Project found that the average publication time for all contracts within the DHSC was 47 days, meaning that missing the regulatory requirements was commonplace.

The decision by the judge was clear and highly critical of the government. Justice Chamberlain said:

” The secretary of state spent vast quantities of public money on pandemic related procurements during 2020. The public were entitled to see who this money was going to, what it was being spent on, and how the relevant contracts were awarded”

Justice Chamberlain was highly critical of the government’s approach in his judgement.

He also criticised the government for trying to defend the claim (which had it had done so weakly) saying that this had cost the government £207,000 of taxpayers money. He said they should have accepted wrong doing earlier and avoided the necessity of a court hearing.

This legal judgement is damaging to the government. However, it also has a damaging political impact, with the a sense that ‘cronyism’ is at play and contracts are being awarded for the wrong reasons. Beyond these cases, there have been other cases that appear worrisome. An investigation by the New York Times in December 2020 found that:

  • Between January and November $22 Billion worth of COVID-19 contracts had been issued.
  • About $11 Billiob went to companies with political connections to the government or no prior experience in the field they were contracted for.
  • Abut $5 Billion went to companies with clear connections to government ministers or the Conservative Party.

This is a worrying trend, particularly in light of previous Brexit related mispending. For example, when Chris Grayling awarded a ferry contract worth £13.8 million to a company that owned no ships!

Another important point to note is that this Judicial Review took place in the High Court. In fact, this is where most judicial review takes place. The Supreme Court is the final court of appeal. Therefore, clear cut cases like this (the government will not appeal) will be decided without making it to the Supreme Court. When considering Judicial Review, the High Court and Court of Appeal are just as important as the Supreme Court.

Is the UK constitution becoming increasingly codified?

Britain does not have a singular founding document like the US.

Britain has an uncodified constitution. This means that it is constituted from a variety of sources, including: Statute Law, Common Law, Conventions, Royal Prerogative, External Relations and Works of Authority. Of these sources, many are uncodified, meaning they are not written down. This contrasts to a codified constitution like that of the United States in which the vast majority of constitutional rules are contained within the US Constitution which was signed in Philadelphia in 1787.

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