27 October 2017

The Baleful Role Of The SPAD

An accelerant we cannot afford.

By John Watson

There has always been a tension between the needs of politics and the needs of good government. Faced with even the best plan, politicians will seek to make political capital and if that means having to choose between supporting a sensible proposal or criticising it to enhance their own position, the enhancement of the position generally comes through as the winner. Bad administration is one of the prices which we pay for democracy.

It isn’t difficult to find examples of this. No further than the positioning over Brexit, as it happens. Now the government has been much criticised for its reticence over its negotiating stance, but it has come out with one technical proposal which seems really solid.  A Great Repeal Act will provide that at the moment of separation from the EU all the existing European legislation is frozen into English law. After that Parliament can change that law by repealing it or modifying it as it sees fit. That certainly seems to be the sensible approach. There will be no areas where suddenly no laws at all apply.  There will be no need to try to disentangle the existing UK rules from EU rules. The judges can simply look at what the law was and whether it has been changed. Certainty will have been achieved for everyone and, whether you are a Brexiteer or a Remainer, it is hard to think of a better route for achieving separation. Who could possibly be against it?

Well, Grant Shapps, the MP for Welwyn Hatfield , that’s who.  He is uncomfortable at the prospect of old EU rules remaining in force so he wants them to automatically cease to be part of English law five years later. The trouble with that proposal is that it doesn’t work.  EU rules are now so embedded in English law that in practice it would be impossible to carve them out. Also if part of our legal system disappeared overnight there would be gigantic holes – areas where there was no longer any law at all. No doubt Mr Shapps would say that it was up to Parliament to fill them but it would hardly be practical to do that in the course of five years.

The interesting point here is not that the idea is a silly one but the way in which the proposal exposes the conflict between politics and administration. There was a political point to be made and Mr Shapps made it without giving much thought to the chaos which his proposal would cause if adopted.  Still, MPs are busy people so perhaps Mr Shapps can be excused on the basis that he didn’t have the time to think it through. No similar excuse can be offered for those behind section 40 of the Crime and Courts Act 2013.

This is an example of government at its slimiest. It clearly would not have done in a democracy to force newspapers to register with “approved” regulators. No, that is the sort of thing which used to happen on the wrong side of the Iron Curtain.  So a way had to be found to get them to register “voluntarily” and the tool used was to make them responsible for the costs of people who sued them in libel unless the approved regulator would have sorted out the position. Yes, you read that right. I didn’t say “if they lost the case”. They would have to pay the costs of every nutter who claimed against them subject to the flimsiest of safeguards.

Back in the Downing Street bunker they must have laughed at this one.  I expect they gave the dark glasses a special polish before crawling out into the sunlight. You see the joke was that newspapers which did not register with the approved regulator would risk being ruined.  So they would have to register. But the government could say it was voluntary and we still had freedom of the press. Brilliant!

Luckily the government came to their senses at the last moment and the section is not to be implemented. Still, one has to ask the question. Who on earth thought that a provision as oppressive as this was in any possible way appropriate?  Yes, there may have been political mileage but surely anyone could see that the price in terms of freedom was too high.

The same question can be asked in relation to the government’s consultative document on tax avoidance.  Following Mrs Hodge’s work on the Public Accounts Committee, tax avoidance is a matter of national concern and no political speech is complete without reference to raising more money by eliminating it. The trouble is that the proposals put forward include penalising those who advise where the boundaries of the tax law actually lie.  If the advice is seen as relating to tax avoidance and the sums are large they could be put out of business.  Here we see the two sides of the balance emerging again. On one side there is the cheap political point, attacking a public mischief which in truth has probably already been eliminated. On the other there is the administrative damage which the proposals will do.  Businessmen unable to get advice on whether the structure of their investment is legal or not. Foreign investors put off by the fact that there is no longer certainty in the UK. Jobs lost. City institutions moving to Germany.

Fortunately the idea is still in consultation (and if you would like to read the Shaw Sheet’s analysis follow the link) and hopefully the new Treasury team will have the wit to put the proposal where it belongs.

Still, it is the pattern we are looking at here. The putting forward of proposals that do not make administrative sense but sound politically fashionable. All right, section 40 is not being implemented and hopefully the proposal to put advisers in jeopardy will not be implemented either, but how did either proposal gets so far? Why were they not weeded out by the civil servants? You do not have to be a fan of “yes Minister” to know that it is the function of the civil service to tell the politicians when their proposals are not wise. Is this something which they are ceasing to do?

Slip across then to Westminster and look at the people with the closest access to MPs and ministers. In the past the advice would all have come from civil servants but now there is an army of special advisers, some of them interested in good government no doubt, but many of them trying to build political careers of their own. They act as an accelerator to the deterioration of government because if the minister comes out with an idea (and ministers after all are only human) which is politically attractive but not very sensible it is in his special adviser’s interest to encourage it. Their career is boosted by the minister’s political success. It is not going to hurt them much if the administration goes wrong. They are the political equivalent of the bankers who encouraged clients to take the wrong financial products because they would earn the commission.

We know little about Mrs May’s administration as yet but like her or not I would not have thought she was the sort of woman who was susceptible to over-politicised advice. Let’s hope that her new ministers are not either.

 

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