Brexit and the waning days of the United Kingdom

[Sheilbh]

I thought this piece was interesting. I'm pretty sympathetic to the political constitution - but the Tories, despite often having these powers, have not really used them and been pretty ineffective. But they're there, like Chekhov's gun and I think the point on Starmer's ruthlessness is true.

The other thought I have is that we have had a very weird 14 years from the perspective of our system - which is designed to deliver governments with a strong, effective majority (the fusion of the legislative and executive). But we've had a coalition, then a majority of 6, then a hung parliament and then a majority of 80 but a bad PM and a party falling apart. I slightly wonder if we've forgotten what a government with a strong majority can actually do and we're about to find out again.

The other point is that there are lots of quasi-state bodies and "independent" bodies and non-political parts of the state. For all of the concern about them being politicised (or perhaps because of it), I am astonished at how little progress the Tories have made on a march through the institutions - if you compare the last 14 years with, say, the SNP in Scotland or New Labour they've absolutely failed. Again, looking at Starmer's approach with Labour, I'm not sure he'll similarly miss it:

The Conservative Party's Oppenheimer syndrome
The perils of unshackled ministerial power become more obvious on the brink of opposition
Mar 20th 2024

"OPPENHEIMER", which won seven Oscars at the Academy Awards on March 10th, is a film about hubris and regret. Cillian Murphy plays the titular American scientist who builds the atomic bomb that will end the second world war. Then the Soviets get its secrets. An arms race begins; he is tortured by visions of missiles streaking through the sky. "He talks about putting the nuclear genie back in the bottle," scoffs a rival. The prospect of Armageddon can make you question your career decisions.

In recent years Tory ministers have been conducting their own experiment with the nuclear physics of the British constitution. The cognoscenti call it a restorationist agenda that asserts the primacy of a sovereign Parliament over subordinate institutions, and of elected politicians over unelected officialdom. To less sophisticated folk it has looked more like ministers hoovering up powers they don't know how to use and sidelining any practices that inconvenienced them. Either way, Conservatives have put surprisingly little thought into the consequence of this unshackled state falling into the hands of their opponents. A Labour Party that is inimical to much of what the Tories hold dear is on course for a parliamentary majority in a system where the institutional and cultural checks on executive power have been weakened.

Sir Keir Starmer, Labour's leader, is an institutionalist, who loathed Boris Johnson's disregard for norms and promises to put officials back on their pedestals. Yet he is also an instrumentalist, who has employed every clause of the Labour rulebook and every chapter of parliamentary procedure to bring his party to the brink of power. He wants to do things by the book, but the book is also there to be used. Sir Keir thinks the state is siloed and drifting; he wants to get it moving to revive the economy and restore public services. As his chief of staff, he has hired Sue Gray, a former mandarin who is temperamentally averse to constraining Whitehall.

In the government's hands a statement of the constitutionally obvious—that Parliament is sovereign to legislate as it wishes—has been used as a pretext to do whatever is politically convenient. Should Labour secure a large majority, as its poll lead suggests it might, that stance will look less smart. Sir Keir's office has vetted its candidates far more rigorously than Sir Tony Blair's did before his landslide win in 1997, so that they can be relied on to pass his legislative programme. Sir Keir does not have much appetite to end the Commons' dominance: a proposal for an elected second chamber, which would act as a stronger check than the House of Lords, has been kicked into the long grass.

Not that MPs will always be needed to get things done. Sir Keir told business leaders recently that he would crack on with planning reform without legislation: "I don't want to get bogged down. We've got to get on with it from day one." Handily, over the past decade the statute book has been laced with powers that allow ministers to devise regulatory codes or amend existing legislation with little parliamentary oversight. Take the Retained EU Law Act, which allows sweeping amendments to old EU law on the strikingly broad grounds of  "changes in technology" or "developments in scientific understanding". Rishi Sunak, the prime minister, warns that Angela Rayner, the deputy Labour leader, wants to heap red tape on enterprise; doing so has never been easier.

Free-market Eurosceptics have little to show for breaking off the EU's legal girdle. But Brexit has enabled Sir Keir to make one of his most popular policy proposals: levying sales tax on private schools, which many Tories regard as vandalism and which was impossible under the bloc's tax rules. If Rachel Reeves, the shadow chancellor, can find the money for her dirigiste vision, she will have greater freedom to spend it; that is because Mr Johnson loosened the old EU subsidy-control rules, which had been pushed for by Margaret Thatcher to make Europe more competitive (Some on the Conservative right also now question the wisdom of a new ministerial definition of "extremist", since Labour's idea of "extreme" may differ from their own.)

When a government has a strong majority and interventionist instincts, the courts become a more important check. But the senior judiciary has given the executive more leeway since clashes between the government and the Supreme Court during the years of Brexit fighting. Analysis by Lewis Graham of the University of Oxford finds that the Supreme Court has ruled in favour of public bodies more often since the presidency of Lord Reed began in 2020. Sir Keir will further this trend: he promises to trim the grounds for time-sapping judicial reviews that hold up big infrastructure projects. Rural Tory MPs who like executive power in theory will not welcome this.

Now I am become death, destroyer of the green belt

The Tories tend to rediscover the case for limited government in opposition. Indeed, a Labour government can produce hysterics. Winston Churchill claimed that Clement Attlee, his wartime coalition partner, would create a Gestapo. The tenure of James Callaghan, the mild-mannered head of a weak government, prompted Lord Hailsham to declare that British democracy was nothing more than an "elective dictatorship", checked only by the consciences of its members and Commons procedure.

The principal check on the Tory government has been its own dysfunction: it has been too divided to put the powers it accumulated to effective use. For a new Labour government, the main restraint would be ministers' willingness not to abuse the system they inherit. But these are politicians, not monks. At the end of the film, Oppenheimer is asked when he got moral qualms about his project. "When it became clear to me that we would tend to use any weapon we had." In politics, as in physics, self-restraint is rarely enough. A spell in opposition may remind the Tories of that.

I'd add that striking to see Rachel Reeves call the planning system the single biggest obstacle to economic growth - and, of course, planning reform won't require spending money.

I think the shift in the Supreme Court under Lord Reed is interesting - I think it slightly mirrors a change that happened in contract law about a decade earlier. There was a period of experimentation and looking over the edge for a different, more interventionist judicial approach - in contract terms, largely around implying terms - and then a swing back to orthodoxy. I think something similar is happening with the public law cases.

Edit: Incidentally also think it means it is incredibly, incredibly unlikely to see even the slightest gesture towards PR. I know I'm sort of the problem because I think in principle PR (as in the Scottish Parliament) is something I broadly support - but my enthusiasm for it is entirely tied to the likelihood of a Labour government with a strong majority

[Josquius]

I do wonder whether this is where the "deep state" conspiracies, largely seen in the US but often popping up here too, have their validity - politically neutral bodies, civil service, etc... Will tend to hire based on merit rather than ideology.... And when the right is embracing the power of belief and actively discrediting facts and logic it's kind of a given those in the job will be overwhelmingly not aligned with this.

I'd also disagree the tories haven't accomplished too much... It's just their goal is destruction. The way they've completely fucked local government is just insane and needs a sharp turn around.

I do hope Labour exploit some of the holes the tories have poked in the system to get some radical change... And then fix them to stop the endless cycle repeating itself a few years down the line.
We really need voting reform to truly stop the wheel. I'd sacrifice Labour accomplishing anything else after the next ge if we could get that fixed.

[Sheilbh]

Oh I think they've definitely got a point. I mean it's not a million miles from Gove's the "blob" from the early 2010s, or Blair's complaints about "scars on his back" from every time he tried to do public sector reform or, really, the complaints of more or less any reforming minister (from any party) since at least the war. There are vested interests and there is an establishment (though its composition may have shifted), the fact the nutters in the US are bleating about a "deep state" shouldn't blind us to that - Tom Forth had a very good thread on this recently.

But ultimately I think it's just reflective of a political failure - again look at New Labour or the SNP because they've absolutely marched through the institutions.

You know, Theresa May did not need to hire former Labour Party Councillor, Blair aide and left wing think tank founder Matthew Taylor (now chair of the NHS Confederation) to do a big report on the gig economy. Similarly, not sure Boris Johnson necessarily needed to hire a former chair of Friends of the Earth and Green parliamentary candidate to run Natural England. In fact I'd be very annoyed if Starmer appoints right wing equivalents to those types of roles. But I very much doubt he will. (Although I do think there is something to the right-wing criticism that appointing someone from the right is "politicising" an independent body while appointing a former Blairite aide/Green candidate isn't.)

They've not been thwarted by establishment plots but by their own failings. I think I've said before but I'd be furious if I were a Tory - potentially historic re-alignment politically, big majority and all pissed up a wall. But that's what you get if Boris Johnson's your leader.

[Josquius]

Oh I think they've definitely  (Although I do think there is something to the right-wing criticism that appointing someone from the right is "politicising" an independent body while appointing a former Blairite aide/Green candidate isn't.)

Surely this is as I say due to the rights lurch to insanity more than anything else.
If you're appointing someone to a position then you want them to be specialists in it - and it's kind of a given a respected environmental expert will be a bit green and this leads them to being generally left wing.

I don't think you'd see this sort of complaint if the right wing figure was genuinely an expert a field with rightish links (say banking?) and wasn't just looking to push ideology over actually doing a good job (the national trust malarkey stands out).

When the right are ceding control of common sense to the left then any right wing appointment will look objectively terrible.

[Sheilbh]

Yeah, I don't think it's because of that I think it's basically political incompetence (maybe except for Cameron who I think just didn't care/understand - see also the A-List).

[garbon]

I see Owen Jones has left the Labour party

[Tamas]

I see Owen Jones has left the Labour party

I guess he wanted to stop holding back his criticism.

[Valmy]

I see Owen Jones has left the Labour party

Who?

[Sheilbh]

I see Owen Jones has left the Labour party

I guess he wanted to stop holding back his criticism.

Yeah - I also loved the "my family always loved Labour" background as well as from my understanding that's true-ish. I believe his parents were in Militant which was the Trotskyist entryists into Labour until the mid-80s (and again under Corbyn). So it's true but his family is also from a very distinct, revolutionary tradition within Labour that is basically always disappointed by the actual Labour Party, especially in office.

Still it must hurt to have been so close to your achieving your political goal, then have it taken away and for the party to then end up with a 20 point lead in the polls in no small part by utterly repudiating that

I think he's set up a fundraising group "We Deserve Better" too fund Green and other "progressive" candidates, I assume to the left of Labour especially given the ruthless control over candidate selection central office has exerted. I doubt it'll have much of an impact but looks like he wants to be a bit of a spoiling role - I also don't fully get the point. If you want to donate to the Greens you can just do that or join the party (my suspicion is the Greens will want to focus on the most winnable seats, while Jones will probably want to focus on the seats most likely to cause embarrassment to Labour).

[Josquius]

Is is quite amazing how this sort moan on and on about right wing policies yet they do their best to help the tories.

[garbon]

I see Owen Jones has left the Labour party

I guess he wanted to stop holding back his criticism.

Yeah - I also loved the "my family always loved Labour" background as well as from my understanding that's true-ish. I believe his parents were in Militant which was the Trotskyist entryists into Labour until the mid-80s (and again under Corbyn). So it's true but his family is also from a very distinct, revolutionary tradition within Labour that is basically always disappointed by the actual Labour Party, especially in office.

Still it must hurt to have been so close to your achieving your political goal, then have it taken away and for the party to then end up with a 20 point lead in the polls in no small part by utterly repudiating that

I think he's set up a fundraising group "We Deserve Better" too fund Green and other "progressive" candidates, I assume to the left of Labour especially given the ruthless control over candidate selection central office has exerted. I doubt it'll have much of an impact but looks like he wants to be a bit of a spoiling role - I also don't fully get the point. If you want to donate to the Greens you can just do that or join the party (my suspicion is the Greens will want to focus on the most winnable seats, while Jones will probably want to focus on the seats most likely to cause embarrassment to Labour).

Hopefully this hastens his irrelevancy.

[Sheilbh]

There is a not insignificant chunk of the British left who really, really, really enjoy the purity of being right and in opposition. There always has been. You think of Kinnock's line from his speech against Militant: "In your socialism, in your commitment to those people, understand it.  The people will not, cannot, abide posturing.  They cannot respect the gesture-generals or the tendency-tacticians. Comrades, it seems to me lately that some of our number become like latter-day public school-boys.  It seems it matters not whether you won or lost, but how you played the game."

There's also a bit of the left - far smaller and sometimes overlapping which I think Jones is part of - where the extent of their actual ambition is to seize control of the Labour Party/lead the British left. Obviously they hate Tory governments but the real enemy is the Labour right and winning the factional battles.

I mentioned before but I recently read John Bew's (great) book on Clem Attlee and it is crazy how many things from the 2010-20s and the 1980s that were recognisable in the 1930s and the 1950s. It's always there and always the same

[Josquius]

Another reason we need electoral reform.
Let the Marxists be their own valid, non vote wasting, party shouting from the side lines forever and a day unless a progressive coalition really needs them.

[Sheilbh]

Although there's a trade off there, right?

It would diminish their impact on the Labour Party but increase it on Labour governments.

[Sheilbh]

This feels like it should be a bigger story - and relevant on conversations about vested interests/"deep state" or, as we used to call it, the establishment (I'd add in some of Rory Stewart's anecdotes of being a Foreign Office minister and struggling to stop the UK accidentally funding jihadis in Syria).

For those interested the 19 page witness statement is here: https://iiaweb-prod.s3.eu-west-2.amazonaws.com/WS-Rt-Hon-Johnny-Mercer-OZ_Redacted_-for-the-website.pdf

The remarkable witness statement of Johnny Mercer
How a government minister tried and failed to get to the bottom of serious war crimes allegations
By David Allen Green
March 21, 2024


Image: PA Images / Alamy Stock Photo

An extraordinary witness statement has been published. You can read it here. Indeed, before you read this post any further, click into the witness statement and read it. The statement tells one of the most remarkable stories. It reads like a treatment for a film; its screen rights should be optioned without delay.

As with many good stories, it has an unlikely protagonist. And here the protagonist is the government minister and former soldier Johnny Mercer.

You may have heard of him. In particular, you may have come across his sheer disdain for certain lawyers and for what he sees as vexatious litigation against those who have served in the armed forces. 

And in this respect, he has been quite effective. Two acts of parliament—the Overseas Operations (Service Personnel and Veterans) Act 2021 and Northern Ireland Troubles (Legacy and Reconciliation) Act 2023—exist in good part because of his drive and determination. Both statutes make it more difficult for former service personnel to face legal accountability.

But, as the witness statement describes, the hero of the story goes through quite the character arc, from sceptic to believer. He goes from not believing that British soldiers were capable of war crimes to becoming convinced some very bad things happened and that there is an official silence—if not cover-up—in place about these bad things.

This transition starts, the statement tells us, with conversations with those he has served with. He is told to be careful as, in fact, there were things that happened in Afghanistan which could constitute war crimes. Mercer takes this information seriously.

The information was about the deliberate killing by UK special forces of detained Afghans. There is actually no dispute that this happened. There are numerous documented examples of squads of special forces detaining groups of Afghans and some of those detainees then being killed. This is not a situation where there is doubt as to whether the person had been detained or not. Nobody claims there is doubt. The person is detained, and then killed.

What is disputed is the circumstances of these killings. According to special forces, in each case, somehow and in some way, one of the detained individuals suddenly produces an AK-47 or a hand grenade and so has to be shot. This justification is typed out repeatedly in formal accounts of the incidents, almost word-for-word.

The problem with this recurring explanation, of course, is that—according to those with relevant military experience—it is implausible if not impossible. Or even if it happened in one exceptional situation, it was unlikely to have happened identically again and again, so as to explain why in each operation an Afghan ends up dead even after detention.

And Mercer is certainly not convinced. Here he draws on his own direct experience of three tours of combat in Afghanistan. He starts asking questions of officials. He feels as if he is politically exposed: promoting legislation to make it more difficult to prosecute former service personnel on one hand and there having been potential war crimes on another.

He is shown a document by a spook, in dramatic for-your-eyes-only circumstances. Mercer is not even allowed to keep a copy. And it is a remarkable document, which (for reasons we will come onto) is now in the public domain.

It is a typed memorandum, dated 5th April 2011, sent to the director of special forces. The author tells of "information of a nature which makes me seriously concerned for the reputation of UKSF [UK special forces]." He says he has been told that "there is in effect an unofficial policy... to kill wherever possible fighting aged males on target, regardless of the immediate threat they pose to our troops. In some instances this has involved the deliberate killing [of] individuals after they have been restrained... and the subsequent fabrication of evidence to suggest a lawful killing in self-defence."

This is huge. The author of this memorandum is not some lefty ambulance-chasing claimant lawyer but a commander of special forces in the field. The memorandum is even entitled, in evasive bureaucratic acronyms, "Allegations of EJK by [UKSF]": allegations of extra-judicial killing by UK special forces.

The existence of this memorandum is not disputed. And, as such, it means that at the time—in April 2011—the allegations were being taken seriously enough for a senior officer to put them in writing, and to expressly urge "most strongly that thorough investigation is warranted."

Mercer tells us he was not then shown any other documents. But he is increasingly uneasy. He has by now also been told by a member of special forces that they were expected to carry a non-Nato weapon to place next to the bodies of unarmed Afghans to make it look as though they were armed.

The witness statement tells us how Mercer pieced various things together to shake his beliefs and to fuel his increasing concern. But, like the unlikely protagonist in many other stories, he is getting nowhere and is being obstructed and brushed off.

He demands to see more evidence. He wants to see the full motion videos of the detention operations. Such evidence has been telling in Australia for showing that Australian special forces allegedly killed unarmed Afghans. But he is told that no video footage is available. He does not believe this to be true. 

And then came the news reports. The allegations and the lack of any satisfactory explanation for what happened are set out by Panorama and the Sunday Times. The news reports also indicate, the witness statement tells us, that key documents were not shown to Mercer. He has been kept in the dark. 

The impression one gets both from the witness statement and the oral evidence Mercer has now given is that he believes he was used—"gamed" is his word—by the Ministry of Defence. His passion for protecting veterans from what he calls "lawfare" was exploited by more senior ministers and officials in getting legal protection onto the statute books, but the full picture was kept from him. This impression is probably accurate, and it explains the anger that is plain in his evidence.

Mercer, a junior minister, then decides to write a letter to his own secretary of state, Ben Wallace. This letter, from August 2020, is now also in the public domain—and, like the witness statement, it should be read in full.

The content of this letter is also huge. For example, in the letter Mercer explains that he read out statements to the House of Commons which others in the Ministry of Defence must have known to be false. As Mercer said in oral evidence, "I was very cross that I had been allowed to make a statement in the House of Commons in January that year that was clearly incorrect when faced with the evidence that existed within my own department—and for me that was a kind of red line being crossed, in terms of, you know, 'we're not on the same side here.'"

But other than this letter, it appears that Mercer did little to take the matter further. He then leaves the government for a while. When he is asked about this by journalists he refers them to the government. He refuses to make any public comment. He is even approached by those who made the allegations. He tells them that he had done what he can but the responsibility rests with the Ministry of Defence and the secretary of state.

The story of how Mercer came to take the allegations seriously, about what he was told and shown and what he was not told and not shown, and of how he worked out that there was a problem here, is compelling. It is a tale skilfully told. This is a witness statement for the ages.

But, if one looks carefully, it is also a story where the protagonist does not protagonise. Like Indiana Jones in Raiders of the Lost Ark, the hero of the story has no real impact on what is happening. The detail of the allegations raised by in the media takes Mercer by surprise, but he does not support an inquiry, and he does not resign. Other than writing a letter, there is little trace of what he did with his deepening serious concerns.

The Independent Inquiry Relating to Afghanistan that has now been set up, and for which his witness statement and the documents referred to above have been provided, came about not because of what Mercer learned but because the government feared what would come out in judicial reviews brought by lawyers for the families of the killed Afghans. The very sort of judicial reviews which Mercer has spent his career opposing.

As soon as that litigation got to an advanced stage, the cases were stayed and this statutory inquiry was established instead, with a senior judge with full powers to demand evidence. 

Left to Mercer, it is hard to see how we would know anything more about what happened. The 2011 memorandum he was shown would be safely still in the hands of the spook who showed it him. The letter of concern to the secretary of state would have remained private. The sterling story of how a minister was obstructed when they asked hard questions would be left untold.

Mercer deserves great credit for setting out what happened when he came to have doubts. That the explanations he received for these killings of detainees simply do not add up could not have been put in a more persuasive form than his witness statement. But ultimately his doubts led nowhere other than him telling journalists and veterans to look to the Ministry of Defence for answers—the same department that, according to him, would not even give answers to one of its own ministers.

There is now the serious prospect of answers because of the current inquiry. The impression given by reading the transcripts and the evidence published online on its superb site is of an inquiry taking its task seriously and unflinchingly. Of course, the final report may still be a whitewash, but we are being shown key documents and have access to important evidence that also allows us to form our own view.

In Australia, the Brereton report has detailed how their special forces were involved in the unlawful killing of unarmed detainees in Afghanistan and how that was covered up. It looks as if we will have a similar report here. And once we have that report then the lasting value of Mercer's witness statement will be to tell us what we would never have known, had it been left to the Ministry of Defence and Mercer themselves.

I have some sympathy with Mercer's position in relation to Northern Ireland, but the point's taken - and it does, in its way, show exactly how public inquiries can be used to kick things into the long grass while uncovering everything. You can fully imagine Keir Starmer or some other future PM making a serious, important apology ini the House several years after the event - just like David Cameron's admirable response to the Bloody Sunday Inquiry given four decades after the crime. Just long enough for everyone who might be implicated to be comfortably pensioned and/or dead.

But hopefully it is a serious (and quick) inquiry as in Australia - and I hope it does lead to something.