h1

The Case of the Missing Documents

September 11th, 2019

One of the votes lost by the government shortly before Parliament was prorogued was in relation to a demand that it provide by Wednesday 11 September correspondence and communications (defined very widely) sent to or from 9 named people since 23 July “relating to the prorogation of Parliament”. There has been much fuss made about the demand for communications made on personal phones or via various message services as if this were an intolerable intrusion into people’s privacy and/or a breach of their human rights and/or the GDPR (a regulation which many quote and few understand). The reality is more prosaic.

  • There is no demand for personal material. Rather it is for material relating to the decision to prorogue, an entirely work-related matter, into which Parliament has a legitimate right to inquire.
  • The means by which those communications are made are irrelevant. As a matter of good practice, government communications should be made on government systems for all sorts of reasons (security, most obviously). But if an employee or adviser is silly enough to use a personal device for work then they cannot claim that they are private and exempt from disclosure.
  • All electronic communication leaves a trace. Never ever think you can delete it permanently. If an authority is determined enough it can obtain it.  Furthermore, the more people are involved the greater the likelihood of there being enough evidence left to be able to reconstruct what was said / done.  And the greater the chances that someone decides it’s in their interest to break ranks, particularly if they worry that those at the top won’t have their back.

Why should Parliament be interested in this material?

After all, the Court of Session in Scotland ruled last week that the prorogation was lawful. (The High Court dismissed a similar challenge in England.) But the former’s basis for the ruling was that the claim was not justiciable i.e. “the advice given in relation to the prorogation decision was a matter involving ‘high policy’ and political judgment. This was political territory and decision-making, which could not be measured by legal standards, only by political judgments. Accountability for the advice was to Parliament and, ultimately, the electorate – not the courts.”

The Prime Minister was entitled to advise the Crown to prorogue Parliament and was accountable to Parliament for that advice. The Court said, in short, not a matter for us. Over to you, Parliament. Those MPs who asked for this material were doing their job – trying to hold the executive to account – and have the Court’s explicit blessing for that.

One of the concerns raised was the absence of a signed witness statement (despite one having been prepared) for the government and why this might be so. Might it be because it was lying by omission or giving a less than full and frank explanation? Possibly. But there could be other valid reasons: this was unnecessary given the government’s case, there was insufficient time to do all necessary inquiries, there was no one person who could give evidence from their personal knowledge etc.

At any event, we will not know until the material is made available.

So what happens next?

  •  Normally a government should accede to such a request. A failure to do so would render it and any persons  specifically asked to do something in contempt of Parliament.
  • That is not something which any Minister or professional civil servant really wants against their name. But a temporary advisor may not care. Remember Cummings has already been declared to be in contempt of Parliament once and has simply shrugged it off. That may work for him – but possibly not other less famous advisors. And the Johnson government may not care, seeing this as a useful wedge issue against obstructive MPs.
  • Parliament is also a court. In theory, it has the power to jail for contempt. In practice, it is unlikely it would go so far.  While it is prorogued it can do nothing.

Assuming all the material is revealed, what happens next depends on what is in it. I would caution against assuming that it will show some great scandal or smoking gun. This is rarer than people like to suppose. It may do but it is just as likely to reveal a confused situation with different people saying different things. It may reveal a failure of good governance, of matters not being conducted as they ought to be, of a cynical and/or contemptuous approach to MPs, or that Ministers lied to the press or were, to be kind, economical with the actualité.

But what to a lawyer or civil servant may seem shocking or scandalous may not amount to a political scandal. It may simply reinforce an existing view about a government rather than shock people. The public may not care. There may be other more important stuff going on at the time. Those making the point may be unpopular. (In a battle between a pedantic lawyer and, well, anyone, will the lawyer really win the popular vote?)

And, crucially, it may be hard to express in a pithy memorable phrase what the issue is. Issues often take flight when they can be easily summarised. “What did the President know and when did he know it” sums up Watergate. Or “A good day to bury bad news”, which revolted with its opportunistic use of intense human suffering. “Boris lied about shutting down a Parliament which has been faffing around for 3 years” is not an obviously killer line.

This is a pity. Trust is essential to the good functioning of any organisation. Trust in what Ministers say matters. The fight between Parliament and the government over this and other issues – whether in Parliament or in the courts – is because there is precious little trust left. This may not seem to matter now but there will come a time when the government will need the trust and goodwill of the public and Parliament and will have precious little in reserve to call on.

There are three points of danger for the government:-

  1. It is often hard to anticipate what issues turn into scandals. Who now remembers why an argument over a helicopter company on an issue which was hardly central to the government’s purpose threatened Mrs Thatcher’s position in a way that more serious matters had not. An argument over what a journalist said on a radio when most are asleep turned into tragedy when a public servant felt abandoned and ended his life. It is precisely because governments are far less in control of events than they pretend that it makes sense not to pick unnecessary fights.
  2. The two court cases over prorogation are being appealed. It is possible that the higher courts will overrule the existing decisions; this could bring into play exactly what was said and by whom. At that point the material may become intensely interesting and, if embarrassing (or worse), potentially harmful. If lies have been said to the courts on critical issues that becomes a big problem.
  3. The public can be fickle. The government may now calculate that ignoring Parliament will have the public on its side. It should not assume that this will always continue to be the case.

At the heart of this issue is one important point: good governance and trust in how government reaches decisions, particularly controversial ones, are essential – as the Iraq war should have taught us. This applies regardless of whatever side of the Brexit divide anyone is on. It matters even more once Brexit happens when the quality of our politicians and administration will not be tempered or influenced by outside influences to the same extent as now, for good or ill. This will not be the first controversial decision the government and Parliament will have to take on Brexit. If every one is going to be turned into a fight, exhaustion will soon set in. Decisions made when exhausted are rarely good ones.

CycleFree