The rules: ethics, legalism and the public interest
(Alamy)
Tuesday afternoon, 7 December 2021, may come to deserve an historical footnote and possibly much more: not only for the study of public truth and ethics, but also for those interested in the academic political science sub-specialism of “scandalology”, namely why and when do some potentially awkward events pass unnoticed or are treated by voters with a shrug of the shoulders, whereas others of seemingly less significance cause uproar.
Two significant things happened.
First, Sir Philip Barton (pictured above), the head of the UK Diplomatic Service and Permanent Undersecretary of the newly reintegrated Foreign, Commonwealth and Development Office (FCDO), appeared before the Foreign Affairs Committee of the House of Commons. He was there to defend his department’s performance during the emergency evacuations from Afghanistan following the Taliban’s rapid, though not unexpected, takeover of Kabul in August.
Making his task far harder was a 39-page memorandum of evidence submitted to the committee by a brilliant and evidently alarmed 25-year-old diplomat. Raphael Marshall had been so shocked by the chaos he had encountered within the FCDO’s Whitehall headquarters that he had brought his dissatisfaction to Sir Philip’s attention. At the height of the crisis, and despite his junior status, Marshall had been given a major responsibility: deciding which of the many thousands of desperate Afghans who had appealed for asylum should be authorised to board the Royal Air Force planes which were being permitted to land in Kabul for the strictly limited few days agreed by the Taliban.
His particular job had been to attend to pleas sent directly by email from individuals in Afghanistan or through emails sent on their behalf by Members of Parliament or by other British notables. To say that decisions taken in London were a matter of life or death for every applicant and their families was no exaggeration.
Sir Philip and, to a rather lesser extent, two other senior officials who also gave evidence seemed masters, not of clarification and action, but of obfuscation. The phrases that the Permanent Undersecretary used to avoid answering the simple question of the dates during the Afghanistan evacuation crisis on which the then Foreign Secretary Dominic Raab had been away on holiday were masterpieces of elegant avoidance.
The real problems about Sir Philip’s replies emerge when the details of the 39-page memorandum of the young diplomat — by now an ex-diplomat (greatly to the loss of the Civil Service) — are examined. The seemingly technical disagreement between the junior official and the very senior mandarin as to whether the reported chaos within the FCDO had or had not contravened the Ministerial Code raise a fundamental question which could not be adequately addressed in the oral exchanges between Sir Philip and his MP interrogators: namely, what are codes and rules? On what basis can breaches be identified and assessed? The real answer is that there frequently is a world of difference between literal, legal interpretations of rules and the substantial, ethical matters underlying them. More about this anon.
The same gulf between form and substance appears to underlie the second of Tuesday afternoon’s revelations. In this case, it was the leak to ITV News of a clip recorded within Downing Street on 22 December 2020 of a practice session at which a member of the Prime Minister’s staff posed an awkward question to Number Ten’s designated spokesperson, Allegra Stratton, who, according to a soon-to-be-aborted plan, was to conduct live daily press conferences on the premier’s behalf in the style of the White House and the State Department in Washington. How should she respond if asked whether there had been a party within Number 10 Downing Street, held in contravention of the Government’s own lockdown rules? The premise of the sensible practice session may plausibly be seen as instruction in how best to duck awkward questions.
That this year-old film clip should find its way into the hands of ITV seemed to be an attempt on someone’s behalf to embarrass Boris Johnson, following Pippa Crerar’s exclusive story of 30 November 2021 in the Mirror, reporting that there had been two parties in 10 Downing Street, one in December 2020, the other attended by Johnson himself in November 2020.
For some days, Boris insisted that, contrary to the story, no prevailing government rules restricting social events in order to limit Covid had been broken. Was this true in a straightforward manner? Or did the claim reflect terminological hair-splitting or some obscure legal technicality? Could the reported events have been authorised “work gatherings” rather than forbidden “ parties ”? And even if they were “ parties ”, could there have been some legal loophole allowing them?
For the minority of readers to whom Section 73 of the Public Health (Control of Diseases) Act 1984 does not readily spring to mind, the prominent Doughty Street Chambers barrister Adam Wagner and the eminent legal journalist Joshua Rozenberg pointed to Subsection 4 (d). This excluded Crown property such as the premier’s offices (though not his private flat) from provisions of the Act, unless there had been a specific agreement with the local authority (in this case, Westminster City Council) that the provisions of the Act should apply.
This brings us back to the junior FCDO diplomat’s charge that the department’s poor performance during the crisis triggered by the fall of Afghanistan had contravened the Ministerial Code. A senior official assigned by Sir Philip Barton to assess the accusation judged that there had been no breach. It emerges from the Raphael Marshall memorandum that the FCDO defence had not reflected questions of fact, but merely of interpretation of the wording of the Code. The departmental view had apparently been that contravention of the Code applied fairly narrowly to matters such as corruption. By contrast, Marshall pointed to the wording of the Code which also listed lack of “efficiency”, a term with far wider application, as a form of contravention.
It is no easy matter to judge the wisdom of facing up to accusations by a straightforward policy of frank admission versus that of ducking, weaving and producing technical defences. It is tempting to state that straightforward, common sense truth necessarily trumps clever forms of avoidance and delay. Indeed, there are ample examples that public moods may change suddenly and that relatively small problems may cause scandal after years when a sitting government could do no wrong and when civil servants easily fended off questions.
I agree with Daniel Johnson’s line recently in TheArticle that openness is best. Who has not heard the myth about George Washington and the cherry tree? Aged only six, he was given a hatchet by his father and proceeded to cut his father’s cherry tree. Rather than avoid his parent’s ire, he admitted the deed because he felt unable to lie.
Nevertheless, we need to recognise that there are cases where public figures and officials are justified in seeking what may appear to be nitpicking explanations or legal lines of defence. Journalists and political opponents are not always accurate; still less are they all angels. We need to appreciate the huge personal toll on the accused. We cannot fully appreciate the recent matter of accusations against the former Cabinet minister Owen Paterson for breaching rules concerning the outside financial interests of members of Parliament without considering his wife’s tragic suicide under pressure of investigations against him.
Charges against politicians are not always valid, nor are regulations which they are alleged to have breached always clear. In this week’s example, involving the leaked recording of Allegra Stratton’s rehearsal on 22 December 2020 as spokesperson at Number Ten, the sad personal effects on her were evident when she stepped outside her home to announce her resignation. Nor, in my view, does the film clip that led her to resign show callous disregard for Covid victims. Her laughter at being asked how she would answer a question about the party held in Downing Street four days previously may equally be interpreted as expressing her discomfort at being expected to spin.
In an area I have studied closely, the funding of political parties in the UK and abroad, I have encountered ample wrongdoing but also dubious charges of malfeasance. During John Major’s premiership in the 1990s, legitimate concerns about cash for parliamentary questions by MPs led to some wild charges about covert Conservative Party funding. Soon it was the turn of Labour to face what I considered defective accusations. Two prominent legal cases involved a Labour MP charged with exceeding the permitted legal spending limit in her election campaign and the then Prime Minister , Tony Blair, who faced questioning by detectives from New Scotland Yard investigating potentially illegal offers of peerages to several individuals who had given large loans to the Labour Party before the 2005 general election.
In March 1999, Fiona Jones, the Labour MP for Newark, was convicted for overspending in the 1997 general election, thereby automatically losing her seat. Yet the case against her stemmed from ambiguities in election law about what constituted an election expense. By the time her conviction was overturned on the reasonable ground that some of the supposedly incriminating expenses had not been “ election ” expenses in the first place, her career and her life had been ruined. Fiona Jones died in 2007 aged 49, reportedly surrounded by 15 empty vodka bottles.
Returning to the evidence presented on Tuesday by the head of the Diplomatic Service to the Foreign Affairs Committee of the Commons, Sir Philip Barton faced personal, reputational risk. He deserves a considerable measure of sympathy. But that is different from being let off the hook.
Traditionally, British politics and governance have been marked by a culture of excessive secrecy. There have been marked, gradual changes for the better. There is a way to go before habits of transparency become more deeply rooted. It is to be hoped that this will happen, albeit accompanied by reasonable opportunities for those under fire to defend themselves.
