The Police, Crime, Sentencing and Courts Bill includes major proposals on crime and justice in England and Wales.

David Mead writes that its introduction is an attempt to divert attention away from serious threats – such as climate change and racialised policing – and onto those who try to raise awareness.

‘By giving the police the discretion to use these powers some of the time, it takes away our freedom all of the time’. David Lammy’s closing speech at the end of the Second Reading debate of the Police, Crime, Sentencing, and Courts Bill gets to the nub of the issue – a potentially massive increase in the power of the state to regulate protest and activism. The Bill, despite some of the hyperbole, does not remove the right to protest; it is drafted very carefully to avoid such a charge, but it does render it far more precarious, and far more in the gift of the police. If we hadn’t before, events at the Sarah Everard vigil on the night of 13 March should make us question the wisdom of this Bill very, very closely.

I will not engage with the question of the Bill’s scope and effect (see instead hereand here). What I want to focus on is the parliamentary passage of the Bill, specifically the side-lining of scrutiny. There are three related issues I want to touch on: the provision of information to the public and MPs about the Bill; the speed of passage; and the need for the legislation (and, more importantly, what MPs see as the need).

The Bill had its First Reading on 9 March, and two days were set aside for the Second Reading later that month. Not only is this a 307-page, 176-clause Bill, but at least for the public order sections, there was no White or Green paper, no draft Bill. There had before been some floating of the need to make inroads though nothing officially was said before March. In late November, Netpol – the network for police monitoring – posted about plans for a ‘major crackdown on protest in 2021’, in light of talks it had had with HMICFRS. The plans were said to include equalising the power to impose conditions as between marches and assemblies; lessening of the trigger from serious to significant disruption to the life of the community; and plans to introduce stop-and-search powers to prevent such disruption. The Bill certainly covers the first, to some extent it touches on the second, but does not include the third. The provisions in the Bill that allow for conditions on noisy protests – if the noise level is such as likely to cause some serious unease, alarm or distress – is new, as is the planned power to regulate one-person protests, the power to prohibit obstructions of entry/exit into the Palace of Westminster, and plans to put common law nuisance onto a statutory footing – though the latter dates back to a Law Commission report in 2015.

Of course, the mood music has been playing for a while – most of the past 18 months have featured regular, albeit sporadic calls for action and castigation of activists, going back to evidence given by Met Commander Adrian Usher to the JCHR in April 2019, where he argued for the police to have powers to deal with unlawful protests, in total contradistinction to ECHR case law. More recently, they go back to claims made about Black Lives Matter and Extinction Rebellion, most especially the pulling down of statues and the blocking of the distribution of several Murdoch press titles in September 2020. The Home Secretary responded by labelling ‘so-called eco-crusaders turned criminals’ while some Black Lives Matter protesters became ‘hooligans and thugs’.

It was clear, then, that the tide was turning, perhaps had done so. That does not explain the Bill that has just landed, accompanied by a 161-page HMICFRS report vindicating the government’s approach. Neither does it explain the absence in the Bill of a power allowing the police to impose conditions centrally, so avoiding the restrictions of the High Court decision in the Jenny Jones judicial review. There, it was held the Met had acted unlawfully when a senior officer had imposed conditions on several cross-London Extinction Rebellion ‘pop up’ protests, since the legislation, properly interpreted, required that to be done separately at each scene.

The Bill then is something of an enigma: to what is it supposed to be a response? We soon see an enigma wrapped up in a puzzle when we consider the views expressed by Conservative backbenchers during the debate. Several (not all – see the thoughtful interventions of StephenHammond and Fiona Bruce) managed to convince themselves into holding two irreconcilable positions: that the Bill was proposing things not actually in it, and yet was needed to cater for things that were already covered. For instance, Gareth Johnson said that ‘the Bill seeks to balance those competing rights. It will allow protests, vigils, demonstrations and marches, but not the blocking of bridges or stopping traffic and bringing cities to a standstill. Protests, yes; causing serious disruption to others, no.’ Then, TimLoughton warned that ‘Labour Members may try to claim that they have objections to the new public demonstration conditions proposed for preventing serious disruption to the life of the community’. Finally, Richard Drax was reassured that ‘the Home Secretary indicated in her speech that these new powers are aimed at preventing protesters from stopping people going to work or closing a city like London for days on end’.

Serious disruption to the life of the community has been the trigger for imposing conditions for 35 years, since the relevant Public Order Act 1986. There is nothing in the Bill that adds to the armoury here, yet none of those three MPs addressed the real challenge to peaceful protest, what I term an existential threat: conditions based on likely noise levels. They may simply be repeating a Whip-derived line – that the Bill does not affect the right to protest. But that is nonsense. Any increase in police power has that capacity and potential. Whether it is ever used, whether we think it should ever be used, are entirely different and valuable normative questions. But to deny that this Bill changes anything at all is false. This is compounded with the realisation that, in fact, the Bill does not deal with Extinction Rebellion protests. It does not alter the Jenny Jones decision. Neither does it deal with protests by putting common law nuisance onto a statutory footing. While it is true that since Rimmington a charge cannot be laid if there is a statutory alternative, that is the very point: either there is already an offence in an Act – charge someone with that – or if there is not, the common law provides the charge. This Bill does not change that.

We see the Bill, then, in its proper light: a lightning rod, diverting proper attention away from the imminent threat of climate change and onto those who exhort for a different way of life to tackle it, away from those subjected to racialised policing and onto those who tear down statues. The Bill is the epitome of much wider contemporary political discourse, one that allows government to cast us as good or bad, activists and citizens, reinforcing tensions and division at the expense of collective social solidarity, and for that reason alone we should oppose it.

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About the Author

David Mead is Professor of UK Human Rights at the University of East Anglia. He has worked with Amnesty, Greenpeace and Liberty on protest issues, been involved with practitioners in cases up to and including the Supreme Court, and been consulted by the UN Special Rapporteurs on both Peaceful Assembly and on Use of Force. Most recently, his evidence has been relied on by the JCHR in its report on protest under COVID-19. He is a member of Netpol’s Lawyers’ Group. He is the author of The New Law of Peaceful Protest: Rights and Regulation in the Human Rights Act Era.

LSE blog

Even in the absence of Cummings, the Johnson Administration will continue its mission of ‘draining the swamp’ in Whitehall

LSE British Politics and Policy

November 20th, 2020

Despite being closely associated with Dominic Cummings’s visions, the effort to de-privilege the civil service did not begin with him, but with the arrival of the Cameron Government in 2010, writes Patrick Diamond. The chasm between Ministers and civil servants is a long-term structural trend, exacerbated by alterations in the ideological nature of British Conservatism, and will continue to grow even without Cummings.

Dominic Cummings’ dramatic departure from 10 Downing Street inevitably stirred great excitement among political pundits and commentators in the Westminster village. It raised fundamental questions about the future character of the Johnson Administration. Among the most significant was whether Cummings’s historic project to fundamentally transform the British state was now over. There was speculation that shorn of its permanent campaign ethos, the Conservative Government would revert to a more measured governing style, striving to work co-operatively with the civil service, respecting constitutional convention, upholding democratic norms, while practising statecraft by consent. Many officials will desperately hope that Cummings’s demise amounts to the end of the ‘hard rain’ that has fallen on Whitehall since the Brexit referendum in 2016.

Nevertheless, civil servants would be mistaken to assume that Conservative Ministers are about to revert to a more consensual governing approach where officials are free once again to ‘speak truth to power’. The growing chasm between Ministers and civil servants is a long-term structural trend, exacerbated by alterations in the ideological nature of British Conservatism. The influential ideas of the New Right in Britain and the United States attack bureaucrats as self-interested and incompetent, the very antithesis of the public good. Cummings’s rhetoric has inflamed tensions and certainly not helped matters. Yet he alone is not the driver of the growing division in the ‘governing marriage’ that characterised Whitehall since Northcote-Trevelyan and the Haldane report of 1918.

As Rodney Lowe and Hugh Pemberton outline in their masterful second volume of the Official History of the British Civil Service, six forces have propelled Ministers and officials towards divorce, while fragmenting and destabilising the system of government in the UK.

The first is the growing emphasis in the British state on prioritising a narrow measure of financial efficiency. The focus on cost reduction since the efficiency review led by Derek Rayner in the early 1980s led to a sharp fall in civil service numbers. Over the last decade, numbers have fallen further (although there has been a slight uptick since Brexit). Not surprisingly, the financial squeeze has left the civil service demoralised and weakened the fabric of the state.

The second is the related trend towards outsourcing. Service delivery has come to rely less on the public sector than on a multiplicity of private and non-governmental providers. Civil servants are the managers of contracts, commissioners increasingly detached from frontline implementation. More than ever, capital investment has depended on Public Private Partnerships and the Private Finance Initiative.

The third development concerns governance fragmentation. Compelled to operate within the ministerial fiefdoms of Whitehall’s departmental system, officials have struggled to work across boundaries to shape effective policies. Among the most far-reaching reforms was the creation of ‘Next Steps’ agencies in the late 1980s. Over time, three quarters of the civil service have been transferred to ‘arms-length’ agencies, entrenching the artificial separation between policy determination and operational delivery, making ‘joining-up’ all but impossible.

The fourth trend is centralisation. Policy-making influence in Whitehall has become increasingly concentrated. The growing power of the centre in Number 10 has encouraged group-think and hyper-innovation, marginalising the civil service. Yet paradoxically, the centre has become more enfeebled and brittle, lacking the necessary capabilities for effective decision-making, detached from the realities of ‘street-level’ service delivery.

The fifth accompanying shift is the politicisation of Whitehall. Among the most significant changes is the doctrine of ministerial supremacy. Rather than formulating policy through constructive collaboration between officials and Ministers, the ideas of politicians, often developed in the opposition years, have come to dominate the policy-making process. Ministers, after all, have a direct mandate and their views are held to encompass ‘the will of the people’. Yet side-lining civil servants has created a deliberation deficit which exposes Ministers to the growing threat of policy fiascos and blunders.

The final long-term change has been the ideology of the limited state. The position of the civil service was further undermined by the ethos of small government that prevailed after 1979. The role of the state was now to uphold private property rights and the basic liberties of the individual. Any constructive role for government in developing the industrial base, spurring economic growth and improving productivity was eschewed. This position amounted to a further attack on the efficacy of the public bureaucracy.

Even in the absence of Cummings, the Johnson Administration will continue its mission of ‘draining the swamp’ in Whitehall. There is a persistent belief that government, central or local, is inherently inefficient, even corrupt – underlined by the response to the pandemic. Ministers favour a market state where a politicised centre determines policies, while implementation is carried out by a host of non-state, usually private sector, providers. There will still be a NASA-style mission control centre, accompanied by White House-style press briefings. Civil servants will be further marginalised by trouble-shooting management consultants. The signature reform of the current administration in response to the governance fiasco of COVID-19 is to bring Public Health England, an operationally autonomous agency, under the direct political control of Ministers. For all the rhetoric about levelling-up the UK, there will be no renaissance in the status and legitimacy of the public sector.

Indeed, the effort to de-privilege the civil service did not begin with Cummings, but the arrival of the Cameron Government in 2010. Francis Maude as Cabinet Office Minister was explicitly charged with shaking up the permanent bureaucracy. The technocratic language of managerialism that characterised statements such as the Civil Service Reform Plan (2012) disguised a basic intention to end the civil service monopoly over policy advice. Maude sought to create a more ‘contestable’ policy-making machinery shaped by think-tanks, consultancies and policy entrepreneurs from outside the Whitehall system. Officials were ever more confined to the margins of decision-making.

These developments speak to a continuing ideological shift in state and society. Remarkably, government is still viewed as the obstacle rather than the solution to the great policy problems of the age.

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About the Author

Patrick Diamond is the author of The End of Whitehall (Palgrave Macmillan, 2018) and Associate Professor of Public Policy, Queen Mary.

LSE Blogs

The Conservatives are shrinking the state – to make room for money and privilege

Boris Johnson’s talk of restoring sovereignty is a lie. He is handing democratic power to economic elites, not the people. George Monbiot writes in the Guardian 14th October 2020.

The question that divides left from right should no longer be “how big is the state?”, but “to whom should its powers be devolved?”. In his conference speech last week, Boris Johnson recited the standard Tory mantra: “The state must stand back and let the private sector get on with it.” But what he will never do is stand back and let the people get on with it.


The Conservative promise to shrink the state was always a con. But it has seldom been as big a lie as it is today. Johnson grabs powers back from parliament with both fists, invoking Henry VIII clauses to prevent MPs from voting on crucial legislation, stitching up trade deals without parliamentary scrutiny, shutting down remote participation, so that MPs who are shielding at home can neither speak nor vote, and shutting down parliament altogether, when it suits him.


He seeks to seize powers from Scotland, Wales and Northern Ireland: the internal market bill appears to enable Westminster to take back control of devolved policies. He imposes the will of central government on local authorities, refusing to listen to mayors and councils while dropping new coronavirus measures on their cities. He claws back powers from the people, curtailing our ability to shape planning decisions; shutting down legal challenges to government policy; using the Coronavirus Act and the covert human intelligence sources bill to grant the police inordinate power over our lives.


His promises to restore sovereignty are lies. While using the language of liberation, he denies power to both people and parliament. He promised to curtail the state, but under his government, the state is bursting back into our lives, breaking down our doors, expanding its powers while reducing ours.


Instead, he gives power away to a thing he calls “the market”, which is a euphemism for the power of private money. This power is concentrated in a small number of hands. When Johnson talks of standing back and letting the private sector get on with it, he means that democratic power is being surrendered to oligarchs.


Under the Conservatives, the state shrinks only in one direction: to make room for money and privilege. It grants lucrative private contracts to favoured companies without advertisement or competitive tendering. It gifts crucial arms of the NHS to failed consultants and service companies. It replaces competent, professional civil servants with incompetent corporate executives.


We need a state that is strong in some respects. We need a robust economic safety net, excellent public services and powerful public protections. But much of what the state imposes are decisions we could better make ourselves. No Conservative government has shown any interest in devolving genuine power to the people, by enabling, for example, a constitutional convention, participatory budgeting, community development, the democratisation of the planning system or any other meaningful role in decision-making during the five years between elections.


The Labour party’s interest in these questions is scarcely more advanced. The 2019 manifesto talked of “urgent steps to refresh our democracy”. It called for a constitutional convention and the decentralisation of power. But these policies were scarcely more than notional: they lacked sustained support from senior figures and were scarcely heard by voters. During his bid to become Labour leader, Keir Starmer announced that “we need to end the monopoly of power in Westminster”. He called for “a new constitutional settlement: a large-scale devolution of power and resources”. Since then we’ve heard nothing.


When challenged on its policy vacuum, Labour argues that “the next general election is likely to be four years away … There’s plenty of time to do that work.” But you can’t wait until the manifesto is published to announce a meaningful restoration of power to the people, and expect it to be understood and embraced. The argument needs to be built – and Labour local authorities, by developing powerful examples of participatory politics, need to show how Starmer’s promised new settlement could work. Instead there’s a sense that the parliamentary Labour party still sees its best means of enacting change as seizing a highly centralised system, and using this system’s inordinate powers to its own advantage.


For many years, Labour relied on trade unions for its grassroots dynamism and legitimacy. But while the unions should remain an important force, they can no longer be the primary forum for participatory politics. Even at the height of industrialisation, when vast numbers laboured together in factories and mines, movements based in the workplace could only represent part of the population. Today, when solid jobs have been replaced by dispersed and temporary employment, and many people work from home, the focus of our lives has shifted back to our neighbourhoods. It is here that we should build the new centres of resistance and revival.


Starmer has so far shown little interest in reigniting the movements that almost propelled Labour to power in 2017. But even if Labour wins an election, without a strong grassroots mobilisation it will struggle to change our sclerotised political system. Any radical political project requires a political community, and this needs to be built across years, not months.
The popular desire to take back control is genuine. But it has been cynically co-opted by the government, which has instead passed power from elected bodies to economic elites. The principal task of those who challenge oligarchic politics in any nation is to offer genuine control to the people, relinquishing centralised power and rewilding politics. Yes, the state should stand back. It should stand back for the people, not for the money.


• George Monbiot is a Guardian columnist

https://www.theguardian.com/commentisfree/2020/oct/14/conservatives-state-money-privilege-boris-johnson-power?CMP=Share_iOSApp_Other

What has gone wrong with England’s Covid test-and-trace system?

It was supposed to be ‘world beating’ but experts say it is having only a ‘marginal impact’

Robert Booth Social affairs correspondentPublished: 19:57 Tuesday, 13 October 2020 Follow Robert Booth

When the NHS test-and-trace system was launched in late May, Boris Johnson promised it would help “move the country forward”. We would be able to see our families, go to work and stop the economy crumbling.

In the absence of a vaccine, the prime minister’s “world-beating” system would be worth every penny of the £10bn funding that Rishi Sunak announced in July. The chancellor said it would enable people to carry on normal lives.

Now as pubs are ordered to close, extended families are forced to stop meeting and intensive care beds fill up fast, the government’s Sage scientific advisers have concluded NHS test and trace is not working.

Too few people are getting tested, results are coming back too slowly and not enough people are sticking to the instructions to isolate, they say.

The system “is having a marginal impact on transmission”, as a result, and unless it grows as fast as the epidemic that impact will only wane.

So what’s going wrong?

Over centralised from the start … 

Tasked in spring with rolling out millions of coronavirus tests, the health secretary, Matt Hancock, opted for a centralised system using private firms. The business consultancy, Deloitte, was handed a contract to help run testing through local drive-in and walk-in test sites, with swabs being sent for analysis at a network of national laboratories, many also outsourced. Serco was also handed a deal to run contact tracing, subcontracting work to other firms as well.

The stakes for their success were high. An Imperial College study found if test and trace worked quickly and effectively, the R number could potentially be reduced by up to 26%.

https://interactive.guim.co.uk/uploader/embed/2020/10/tracing-test-results-chart/giv-3902WcQTbLtrEWu8/

Local directors of public health knew this from experience of tackling sexually transmitted diseases and food poisoning outbreaks, but their role was limited, leaving many exasperated that they were being cut out.Advertisement

As the system got up and running over the summer, ONS surveys of the virus prevalence suggested NHS test and trace might only be picking up a quarter of actual cases.

In July, one of the system’s senior civil servants, Alex Cooper, admitted privately the system was only identifying 37% of the people “we really should be finding”. The clamour from mayors and local public health officials for a bigger role grew.

Finally this week the government admitted cities and regions should be given help to do more.

https://interactive.guim.co.uk/uploader/embed/2020/10/tracing-closecontact-chart/giv-3902gCnFAfg1WvHm/

“We’ve always known that there was a need for a local element of test and trace, as a centralised system does not have local expertise and is not able to cut through the harder-to-reach communities,” Andy Street, the Conservative mayor of the West Midlands, told the Guardian this week.

The strain on a the centralised system has been clear. Sarah-Jane Marsh, director of testing at NHS test and trace tweeted last month: “The testing team work on this 18 hours a day, 7 days a week. We recognise the country is depending on us.” She is about to stand down after less than six months in the post.null

Laboratory bottlenecks

Website warnings that no tests were available exposed the testing crisis to the British public on an almost daily basis this summer, especially in September when schools went back.

Dido Harding, the system’s head, said last month the number of people wanting tests was three to four times the number available. National “lighthouse” laboratories in Milton Keynes, Cheshire, Glasgow and Cambridge, had hit capacity.

More than a quarter of people attending 500 local testing centres after being in contact with someone who had tested positive, were simply turned away because they did not have symptoms.

The scale of the task was shown when Harding told MPs around half of the available tests were being used by NHS patients, social care and NHS staff.

Such was the strain that tens of thousands of tests had to be sent for processing abroad.

And the need for testing will only increase.

https://interactive.guim.co.uk/uploader/embed/2020/10/tracing-time-chart/giv-3902Nnz1ZpgJG9cj/

Johnson has promised daily testing capacity of 500,000 by the end of this month. On Tuesday it stood at 309,000 .

Already a long way off from the target, the system will come under greater pressure over the coming weeks. On Tuesday, the government finally said visitors to care homes could be tested regularly to try and end the isolation caused by their visits to loved ones being banned. There are 400,000 care home residents.

Slow results

New laboratories in Newcastle, Bracknell, Newport and Charnwood should open within weeks and they can’t come soon enough. As far back as May, Sage experts said the speed of results had a significant impact on the reproduction rate of the virus. Turnaround times should be 24 hours or less and it was “essential” this capability was reached by the autumn/winter flu season.

Johnson pledged in on 3 June to “get all [non-postal] tests turned around in 24 hours by the end of June”.

But for the last week of September, the percentage of test results returned within 24 hours in the community testing was no greater than a third. Nearly nine out of 10 Covid-19 tests taken under the system used by care homes in England were returned after 48 hours in September. Kathy Roberts, chair of the Care Providers Alliance, told MPs on Tuesday she doesn’t have confidence in the government’s test-and-trace strategy.

“The percentage of returns is still too low,” she said. “It has improved for people on discharge but not for the workforce.”

Last month Greg Clarke MP, chairman of the Commons science and technology committee, asked Harding if the failure of the testing system was “driving the increase in the pandemic”.

“I strongly refute that the system is failing,” she replied.

Tech problems

The data blunder that caused nearly 16,000 coronavirus cases to go unreported in England last month when they disappeared from an spreadsheet, was not an isolated IT problem. The government’s first attempt to build an app to track infections was abandoned in June after months in development.

A new approach is costing an estimated £36m in development and running costs in the first year. The app allows users to check into venues and receive alerts if they have been close to someone infected, as long as the infected person tells their app. But it has yet to find its feet.

For a while people tested in NHS and PHE settings could not input their results, meaning thousands were being missed. A function which is supposed to alert people when they have been in a place where there has been an outbreak has only been used only a handful of times, despite more than 16 million people downloading the app.

Some employers have also been asking workers to turn the app off. 

Contact tracing

Figures suggest contact tracers working through the national system have been less successful than local council officials. The percentage of people reached and asked to provide details of recent close contacts hit its lowest level since June at the end of September, with performance worsening steadily over the month. It means about 25% of contacts are not reached at all.

There have been embarrassing reports about contact tracers making no calls for days on end, some catching up on Netflix while being paid to do nothing.

By contrast local public health officials, some setting up their own call centres and redeploying environmental health officers and sexual health experts with local knowledge and properly trained in the job, reckon they are tracing close to 100% of contacts.

The difference mattered particularly in north-west England, where the virus took hold this summer and south Asian-heritage communities proved harder to reach. Ministers finally agreed to share real-time data with local authorities in August but only after several councils threatened to break ranks and set up their own locally-run system.

Local health officials complained the centralised system failed to join the dots on linked infections. For example, it might spot 40 cases in one postcode – but wouldn’t quickly grasp that the cluster was linked to a specific workplace, event, or pub.

“Local residents recognise and can relate to their local council, which is not always possible with a national system,” said Ian Hudspeth, chair of the Local Government Association’s community wellbeing board. “Council staff can go to people’s homes to make sure they are aware of what they need to do.”

People struggle to self-isolate

Sage estimates that at least 80% of a case’s contacts need to isolate for the system to work.

Last month, however, it found rates of full self-isolation were below 20% and particularly low among the youngest and the poorest people.

A study stretching from March to August, found only 18% of 1,939 people with symptoms stayed at home and people facing greater hardship were less adherent.

Ability to self-isolate was three times lower in those with incomes less than £20,000 or savings less than £100, according to a third study.

Additional reporting: Josh Halliday

https://www.theguardian.com/world/2020/oct/13/what-has-gone-wrong-with-englands-covid-test-and-trace-system?CMP=Share_iOSApp_Other

A reformer from a bygone era: What the Cummings saga tells us about British governance

Patrick Diamond writes that the Cummings coronavirus row has wider implications for the machinery of British government. These revolve around the status of political advisers and the future of Cummings’s state reform visions.

As the row over Dominic Cummings’s breach of lockdown rules escalates, threatening to engulf the entire Johnson Administration, it is worth reflecting on the implications of the dispute for the future of British governance more generally. The big questions that arise go beyond the details of Mr Cummings’s breach and the fundamental principles of propriety, truth, and integrity in high office. They concern how the machinery of government is likely to develop in the future.

The first implication is what this case tells us about the status of political advisers in British politics. The Code of Conduct for Special Advisers published by the Cabinet Office is clear that the purpose of political advisers is ‘to add a political dimension to the advice and assistance available to Ministers’. According to the official constitutional rationale, special advisers protect the neutrality of civil servants, undertaking tasks of a political nature which – if performed by officials – would undermine their ability to serve future governments of a different political complexion. Civil servants claim to welcome the presence of special advisers who provide knowledge and insight on issues of future policy, while offering steers on the political views of Ministers. The benign interpretation is that the British system of government cultivates a mutually beneficial partnership, a ‘governing marriage’ between Ministers, officials, and political appointees.

Certainly, there have been controversial special advisers before, many of whom were forced to resign because they breached the unwritten rule that political aides must never become the media story – the most pertinent recent examples being Theresa May’s notorious aides, Nick Timothy and Fiona Hill. Yet Timothy and Hill were, by and large, backroom operators who were fired ultimately because their boss was politically weakened in the aftermath of the 2017 general election debacle. Without question, it is an important moment in the development of the British political system that a special adviser such as Dominic Cummings is able to hold their own impromptu press conference in the garden of 10 Downing Street, taking questions from journalists while holding court in front of the world’s media.

Indeed, paragraph 14 of the Special Advisers Code states that, ‘Special advisers must not take public part in political controversy, through any form of statement whether in speeches or letters to the press, or in books, social media, articles or leaflets. They must observe discretion and express comment with moderation, avoiding personal attacks, and would not normally speak in public for their Minister or the Department’. The function of advisers is, ‘to represent the views of their Minister to the media’, rather than to justify their own actions or personal behaviour. In this extraordinary situation, Ministers are being sent onto the airwaves to defend the position of a political adviser. This is a remarkable moment.

The implications of Cummings’s media appearance will be far-reaching. We have reached a critical juncture, constitutionally a point of no return. There is likely to be growing pressure for special advisers to give testimony where they are involved in public controversies, notably to parliamentary select committees. Cummings’s actions will bolster the arguments of those who insist special advisers have a malign impact on the conduct of government, reducing civil servants to the status of ‘passive functionaries’ and politicising public administration. Cummings is a well-known critic of the British civil service. He regards the permanent bureaucracy as slow-moving, unimaginative, cumbersome, detached from seismic shifts in the world of technology and ideas. Cummings’s explicit goal is to ‘drain the swamp’ of the Whitehall bureaucracy, moving towards a ‘them and us’ model where civil servants no longer offer advice, but merely do what Ministers tell them. Civil servants become the implementors of policy rather than the initiators of policy; delivery agents, not ministerial advisers with the capacity to ‘speak truth to power’.

The second implication of the dispute is what the row tells us about the status of the institutional innovator and disrupter in the system of government. It may well be that Cummings’s mission to rewire the British state while radically recasting the Whitehall machinery is dead in the water. His ideas about how to reorganise the state machine might be deemed necessary for an age of disruption, but he will find formidable forces of conservatism in the government machine ranged against him, just at the moment his political capital is depleted badly. One difficulty is that Cummings is attempting to orchestrate change from the centre in 10 Downing Street. In the British system of government, it is departments that usually reign supreme. Departments are the centres of decision-making power, autonomous territories where policy is formulated, budgets are allocated, and implementation is co-ordinated. Even nominally powerful prime ministers with landslide parliamentary majorities such as Margaret Thatcher and Tony Blair discovered that departments have the capacity to thwart the will of the centre.

Another problem is that resistance to fundamental change in the government machine comes not only from civil servants, but Ministers themselves. Away from the highly politicised centre of power in Number 10, Ministers by and large work closely with their officials who they regard as problem-solvers, Machiavellian fixers, loyal courtiers, and expert bureaucrats who know about how to drive through change, navigating the byzantine rituals of Whitehall. The tension is even more acute in a Conservative government, where traditionalists favour the preservation of existing institutions, upholding the long-standing Northcote-Trevelyan principles of impartiality and merit-based appointment. At the beginning of 2020 when Cummings went public with his plan to recruit dozens of ‘weirdo’ data scientists into government supplanting ostensibly ineffectual civil servants, a Cabinet Minister told The Times:‘One of the big problems with [Cummings’s] pull the pin out of the grenade, drop it in the bunker, and see what happens approach is that it is so destabilising…we take several steps backwards before we’ve even started’.

In the world after the pandemic, it is very probable that the debate about state reform in Britain will take a quite different direction to that envisaged by the Cummings’s prospectus. The state is back as an economic actor, and as such, thirty years of antipathy to government as a force for good may be waning. It is public servants who have ensured that furlough wages and benefits are paid on time, while businesses are protected. Discussion will centre on how to restore the capacity of government to tackle major challenges from strategic risks such as future pandemics and climate change, to the long-term implications of the crisis, notably tackling public health inequalities while repurposing institutions. Unquestionably, the overly centralised nature of the British state will come under renewed scrutiny. In this climate, Cummings may well appear a reformer from a bygone era.

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About the Author

Patrick Diamond is Associate Professor of Public Policy at Queen Mary, University of London, and a former Government Special Adviser.

LSE blog

A policy scandal of epic proportions: Why a public inquiry into adult social care and Covid-19 is necessary

Bob Hudson makes the case for an inquiry into the government’s slow response to protecting adult social care settings from the coronavirus pandemic. He outlines the three key issues that such an investigation will need to address and the questions it must answer.

The longer the impact of COVID-19 in the UK has continued, the more the focus of concern has fallen upon adult social care. While the NHS has been relatively protected, social care has been overwhelmed: supplies of PPE have been unavailable; testing has been patchy or non-existent; patients have been discharged from hospitals into care homes and proceeded to spread the virus; deaths among residents have reached somewhere between 30-40% of all coronavirus-related deaths; and fatalities amongst social care staff are outstripping those of healthcare workers and the wider working population.

This is a policy scandal of epic proportions and now is exactly the right time to institute a public inquiry into events. At least three issues will need to be included in such an inquiry: fragility of provision; low policy salience; and unethical policy and practice.

Fragility of provision

The fragile financial structure of the industry is such that most providers were already unable to withstand even a minor downturn in income or an increase in costs. Within weeks of the outbreak, the Care Provider Alliance (representing about half of all care providers) was warning that the sector risked collapse without emergency funding to help pay wages and buy PPE. Similarly the UK Home Care Association said the financial pressures arising from the pandemic could force a significant number of the country’s 8,000 home care providers to close. The pandemic will surely require a fundamental reappraisal of a care market consisting of thousands of independent companies making their own decisions on where to set up, what to provide, and whether or not to continue.

This widespread instability equally applies to the voluntary sector where inherent weaknesses have been starkly exposed by COVID-19. Bookings for training and services have been cancelled, charity shops closed, community fundraising halted, and (in the case of the larger charities) investment portfolios reduced in value. A survey of the sector undertaken during the lockdown period found over half saying they would be bankrupt within six months without financial help. With the sector estimating a loss of £4billion, the allocation of £750m by the Chancellor was generally seen as inadequate – a view confirmed by the Commons Digital, Culture, Media and Sports Committee. A sustainable future for the third sector has to be part of a new settlement.

Low policy salience

Adult social care is a residual means-tested service that has always struggled to achieve political attention. This has been exacerbated by COVID-19 in two ways: the easement of statutory duties, and the perception of the sector as a handmaiden to the needs of the NHS.

Rather than ensure that local councils are adequately funded and empowered to respond to the challenges thrown up by this crisis, one of the first responses of the government was to relieve them of their existing statutory obligations. The Coronavirus Act 2020 provided for the ‘easement’ of local authority duties in England and Wales around the provision of care and support needs. This meant they would no longer have to comply with their duty under the Care Act 2014 to conduct needs assessments and provide support unless failing to do so might constitute a breach of a person’s human rights. The latter constituted a very high bar indeed.

Within weeks of the availability of these measures, eight local authorities had taken up powers of easement, even though there was emerging evidence of a decline in the number of people coming forward to seek help because of fear of contracting the virus. Concerns are now being expressed that local authorities are entering into easement without even providing evidence that they have met the necessary legal thresholds.

The tangled relationship between adult social care and the NHS has a long history, with repeated concerns that the shape of the former has increasingly been determined by the needs of the latter. This has been very evident in the response to COVID-19 with the two sectors being treated very differently in terms of the availability of testing, PPE, and even in the ways deaths are recorded and counted. However, the ‘handmaiden’ role of adult social care is best seen in the allocation to local authorities of £1.3billion to rapidly free up 15,000 hospital beds for coronavirus patients by expediting discharge from hospital back home or to alternative accommodation (notably care homes) for those patients for whom a clinical setting was no longer deemed appropriate. This decision alone threw the sector into chaos and is likely to have accounted for many thousands of deaths.

Unethical policy and practice

Over the decades there has been little reflection on the place of ethics in adult social care policy and practice, so there is some irony in the fact that it took the coronavirus outbreak to finally produce an ‘ethical framework’ for the sector. Eight principles for organising and delivering care have been identified: respect; reasonableness; minimising harm; inclusiveness; accountability; flexibility; proportionality; and community. These are useful principles to guide behaviour in any circumstances and it might be considered unfortunate that it took a global pandemic for them to be formulated. Guidance set out ‘an expectation’ that local authorities will ‘observe’ the framework, but application of these principles in the face of tightening of access to support is bound to be difficult – if not impossible – to deliver.

In the meantime, the policy response to COVID-19 has been characterised by a series of highly dubious ethical decisions. The political and scientific interest in ‘herd immunity’ (and the implied acceptance of the deaths of large numbers of older and more vulnerable people) was central to the government’s decision-making in the crucial months of February and March. It was abandoned only when it became clear in an advice paper from Imperial College London that the NHS would be overwhelmed and up to 250,000 deaths, mostly of older people, would be likely.

This assumption that the lives of vulnerable groups are of second-order importance is also evident in other policies – the absence of PPE and testing in the care sector have been noted, but the most gross ethical breach has been in the transfer of infected and untested patients from hospitals to care homes. Not only are there reports of councils refusing to release payments unless these patients are admitted, but where fatalities occur, care homes are not equipped to deal with them ethically. There is typically no GP presence, no palliation, no fluids, no syringe drivers and no staff with end of life training.

Reports also emerged of residents in some care homes for older people being categorised en masse as not requiring resuscitation should they contract the disease. The Care Quality Commission had to step in and issue a warning for the practice to stop. A similar tale applied to adults of working age, with the National Institute for Clinical Excellence being forced to change its emergency guidance to NHS doctors, after disability groups threatened legal action over what they feared could result in certain patients not getting equal access to critical care. Meanwhile, there are no reliable figures available for coronavirus-related deaths amongst working age adults with a learning disability, autism or similar conditions and disabilities. The contrast with the government’s ethical framework could not be starker.

Time for a public inquiry

All of this amounts to a very serious charge sheet indeed, one that requires accountability to be identified and justice being seen to be done. It is insufficient for the government to suggest in vague terms that these matters can be addressed in the fullness of time; they are too urgent for that. The best way to address them is through a public inquiry. Some are already claiming that this is required as a matter of law under the Human Rights Act 1998 and the European Convention on Human Rights.

As former Department of Health permanent secretary Una O’Brien has argued, the public would need to be confident that all relevant documents, minutes, emails, texts and even Zoom records were handed over to the Inquiry in a timely way. There would also need to be assurances that politicians, officials, scientific and health experts and others would give their evidence willingly, under oath and in public. And there are four questions to be answered: What has happened? Why did it happen? Who is to blame? What can be done to prevent it happening again?

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About the Author

Bob Hudson is Professor at the Centre for Health Services Studies, University of Kent

https://blogs.lse.ac.uk/politicsandpolicy/covid19-adult-social-care-inquiry/

Theresa May forced Grenfell investigators to lie about the cause of the fire – so she wouldn’t look bad

Theresa May forced Grenfell investigators to lie about the cause of the fire – so she wouldn’t look bad

Theresa May forced Grenfell investigators to lie about the cause of the fire – so she wouldn’t look bad


— Read on voxpoliticalonline.com/2018/11/08/theresa-may-forced-grenfell-investigators-to-lie-about-the-cause-of-the-fire-so-she-wouldnt-look-bad/