![by Parliament acts and conventions, leaving the Commons intact so that in
practice, because of direct election, it possesses the sovereign power of
Parliament. However, its sovereignty is legal fact, not political reality. Rather,
as the public lawyer John Griffith has said, practical sovereignty belongs to the
Executive, which has the Crown’s governing powers, provided it has the sup-
port of the Commons, a fact modified but not replaced by entry into Europe.4
Every generation needs to ask how effective, without being disabling, are the
checks on that sovereignty, which Parliament and other elements in the consti-
tution provide. That question precipitated the Civil War and the Glorious
Revolution. In the 1920s, a lord chief justice wrote a book about The New
Despotism.5
In 1978 Lord Hailsham claimed sensationally that we have an ‘elec-
tive dictatorship’, a phrase so catchy that it is still used, despite great changes in
the checks and balances on the Executive since then.6
THE SEPARATION OF POWERS
What Bagehot called the fusion of ministers and Parliament—the fact that the
first are drawn from the second—has been the strongest argument against what
has been mis-called the separation of powers between Legislature and Executive
(mis-called because what would have been involved was the separation of
people into different institutions.7
The powers are already separate.)8
Eulogising the British constitution in the 18th century, Montesquieu had
thought the separation of powers between its Executive, Legislature and
Judiciary its best protection against the tyranny he observed in France.9
He
assumed each would have a distinct motivation: to govern, make laws and
enforce them, but Jeremy Bentham pointed out that such separation in Britain
was largely a fiction. Cabinets then contained several judges as well as peers and
MPs. Judges sat in Parliament and Cabinet. MPs were regularly elevated to the
bench. Bentham argued that they did not have distinct motivations according to
their function, but were equally motivated by financial self-interest.10
He was
right to believe that the art of constitution-making was to find expedients—usu-
ally laws, rules and conventions—which would have the effect of constraining
people’s private interests and aligning them with whatever was held to be the
public interest governing the performance of their public functions.11
It was a
8 The Separation of Powers
4
Griffith (1963) 401–2; also Smith (1999) 11.
5
Hewart of Bury (1929).
6
Hailsham (1978); Daintith and Page (1999) 17.
7
I am indebted for this point to Professor George Jones.
8
Also Tomkins (2003) ch 2.
9
Montesquieu [1748] Book XI, ch VI.
10
Bentham [1776] (1948), mainly ch 3. Even into the second half of the 20th century MPs were
often made judges.
11
Most extensively explored in relation to the government regulation of industry, Laffont and
Tirole (1993).](https://image.slidesharecdn.com/881696-250610053416-d2265a03/85/British-Government-In-Crisis-Christopher-D-Foster-20-320.jpg)
![influence of Adam Smith, this corruption did not check the industrial revolution
and therefore the take-off of economic growth. However, it did withstand
efforts to reform Parliament and administration, not only by radicals and
revolutionaries, but even by the Younger Pitt as Prime Minister.16
This ‘market-place’ Parliament survived the 1832 Reform Act. It was at its
height in the 1840s and 1850s when the statutes needed to build the railways
were passed with extensive corruption.17
A multitude of rail and other statutes,
serving private interests, dominated the legislative programme.18
As in the US
Congress 150 years later, it was difficult to pass legislation which did not benefit
powerful monied interests (but not impossible, as the anti-slavery movement,
repeal of the corn laws, the factory acts and parliamentary reform showed)19
.
By the 1860s, parliamentary corruption appeared so scandalous as to prompt
reformation: a tremendous clearing up of its processes and procedures that has
lasted into our day. Gladstone was probably most responsible.20
The impetus
was preparation for the 1867 Reform Act. It raised the prospect of an equally
corrupt Parliament composed more of representatives of the middle and lower
middle classes. It therefore posed the classic dilemma of how to make democ-
racy safe for the ruling classes. Educated on Plato, Aristotle and Livy, and so
well aware of democracy’s instability, they knew the ancient democracies had
transferred wealth from rich to poor and had fallen partly as a consequence. To
restrain headlong democracy—Carlyle called it ‘Shooting Niagara’—they
replaced corruption with political, judicial and administrative integrity.21
At the
same time, the development of better processes of parliamentary accountability
exposed old ways of trading favours within government. Exposed, they were
largely eliminated.22
THE REAL SAFEGUARDS
In The Federalist James Madison stressed how safeguards against excessive
power tending to corruption are best built in when a constitution was con-
10 The Real Safeguards
16
Ehrman (1969) 223–36, 282–326.
17
Lewin (1936); Alderman (1973); Foster (1992) ch 1.
18
Rail and many other private laws were effective because of the self-interest of those who com-
posed bill committees, though unsurprisingly better at safeguarding promoters’ and landed interests
than rail-users’ long-term interests, Foster (1992). Members of congress may accept contributions to
their election funds from promoters. Hence the strong impact vested interests have on much US leg-
islation.
19
McLean (2001) 46, shows that votes for such measures were usually smaller and across parties.
20
Morley (1906) ii, 239, also 363 said that while Gladstone believed parliamentary procedures
were of the first importance to the efficiency of government, he left no papers about it and therefore
Morley would not elaborate on it. Subsequent biographers have followed his example. But see
Ostrogorski (1902).
21
Carlyle [1867] 1899, 1–48.
22
I am indebted to Professor Dawn Oliver of University College London for this point. I discuss
corruption more fully in Foster (2001).](https://image.slidesharecdn.com/881696-250610053416-d2265a03/85/British-Government-In-Crisis-Christopher-D-Foster-22-320.jpg)
![the Crown which had been the Tudor position.32
Even before there was a
Cabinet in the modern sense, two conventions developed regarding the collec-
tive and the individual responsibility of ministers. Ministers were not held per-
sonally responsible for policy, because that by convention was a collective
responsibility, though they usually answered for government policies as they
affected their department. But they were held responsible for everything else to
do with their departments. In the middle to late 19th century that classic theory
found expression first in prime ministerial statements;33
and then in constitu-
tional textbooks.34
Again as early as the 17th century, the judges came to regard
Parliament as a more sensible check on the Executive’s misdeeds than the
courts.35
The appropriate punishment might be the resignation of the minister
or even the ministry. Such punishment demonstrated the sovereign political
power of the Commons over the Executive.
The historically-minded think first of the greatest occasions. Of Chamberlain
brought down in the two-day debate over the fiasco of the Norway campaign,
knocked out by speeches by Attlee, Admiral of the Fleet Sir Roger Keyes,
L S Amery and Lloyd George of which best remembered is Amery’s heavy punch
from Cromwell: ‘You have sat too long here for any good you have been doing.
Depart, I say, and let us have done with you. In the name of God, go.’36
Or of
how, less well known, in another debate after the fiasco of the Charge of the
Light Brigade in the worst days of the Crimean War, a speech by Lord John
Russell brought the Aberdeen government down, as a speech by Sir Geoffrey
Howe, also on resigning from the government, was to bring down Margaret
Thatcher.37
Conversely, an anthology could be made of the speeches by which
great orators have extricated themselves from tight corners, as did Lloyd George
over the Marconi and Maurice affairs; another of failures to deliver a knock-out
blow, as Neil Kinnock failed to finish Margaret Thatcher in the Westland
debate in 1986 or Michael Howard, Blair, in 2004 over Iraq; and a third of when
lesser ministers failed to extricate themselves, as John Nott over the sinking of
the Belgrano or when Leon Brittan as Home Secretary pleased nobody by his
equivocations over capital punishment.38
But to limit accountability to presumed offences is misleading. Whatever
ministers do in Parliament, like announcing a decision or explaining a bill, is
rendering an account to Parliament which only becomes an offence if
Parliament judges it one. Not only what ministers say to Parliament, but also the
Parliament 13
32 Tanner (1928) 50; Marshall (ed) (1989) 2.
33 E.g. Earl Grey in 1858, quoted by Woodhouse (1994) 5, 6; Lord Salisbury in 1878 and
Gladstone in 1883, quoted by Madgwick in Herman and Alt (1975) 77–78.
34 Bagehot (1997) ch 5; Dicey [1885] (1959) 329, 364, 374–75, 382–83; Anson (1908) 387–401;
Jennings (1959) 112–14; Woodhouse (1994) ch 1, 2.
35 Woodhouse (1994) 4
36 Jenkins (2001)576–82.
37 Ridley (1970) 431–33; Molesworth (1886) iii, 34–38.
38
Nott, Hansard, 3/4/82; Dalyell (1987) 14–15. I am indebted to Ruth Winstone of the House of
Commons Library Parliament and Constitution Centre for these references.](https://image.slidesharecdn.com/881696-250610053416-d2265a03/85/British-Government-In-Crisis-Christopher-D-Foster-25-320.jpg)
![and later as US president, had lasting effect on Americans’ very different view of
politician-civil service relationships. One recalls an obscure nineteenth-century
German political philosopher only because of his influence on Wilson. He,
Blunstchli, observed that since laws could never be detailed enough to prescribe
what should be done in every case, there must be administrative discretion in
decision-making.7
How could it be disciplined so as to be a legitimate inter-
pretation of the law?8
Wilson’s answer was also Germanic, indeed Weberian.9
Once the laws were made, politicians should tie the bureaucracy down to the
greatest extent possible by rules to constrain their administrative and executive
actions, and they should be published, as they still are in the USA, running
annually into thousands of pages.10
Such a rule-based administration had been
established between his 1887 article and his becoming president in 1912.11
Though congress may challenge these rules, political accountability in America
has been as incoherent and ineffective as it is now becoming in Britain.12
Instead, effective accountability for these rules is to the US courts, while in con-
tinental Europe it is usually to institutions of administrative law.13
Court-based
accountability remains important because in its various American and conti-
nental European forms, it is the other main way of limiting the unbridled power
of the executive, should the British partnership alternative appear irretrievably
broken down.
Given these bureaucratic rules, the Wilson approach required the greatest
possible separation of powers between politicians and officials, the latter taking
the decisions on specific cases to reduce political interests and corruption
influencing administrative decisions. Its practical effect is still observable,
though somewhat eroded by the politicisation of the top levels of the US execu-
tive.14
Through the US spoils system presidents exercise some power over
administrators through political appointments, needed in the US model to
control the officials below and avoid rule by bureaucrats. However, appointees
to senior positions have many different backgrounds, motivations and interests.
Once appointed, they can be hard to get rid of, therefore to influence, so that the
22 Growth of the Relationship
7
Bluntschli (1898) 521–23. In 1690 John Locke had similar, but fuller and more exact, thoughts
on the practical necessity of administrative discretion in interpreting the law, Locke, [1690] (1924)
199–203.
8
Dicey was among those keenest to limit ministerial and official discretion, but was only able to
make it plausible because of the extreme laissez-faire position he took up, Jowell in Jowell and
Oliver (1989) 3–8.
9 W Wilson (1887) 213–14.
10 Breyer (1982).
11 In practice, unlike Britain, each part of the federal bureaucracy came to make the rules for itself
because American politicians never had time to devise them. How the US courts exercised this func-
tion was not codified until the Administrative Practices Act, 1946, see Breyer (1982); Oliver (2003)
323–24.
12 Campbell & Wilson (1995) 251. I am indebted for this interpretation of Haldane to Thomas
(1978). Later I found a similar idea, though not the metaphor, in Dale (1941) 121–30.
13 On the difficulties of rule-based administration, see Jowell in Jowell and Oliver (1989).
14 Wilson was an admirer of Northcote-Trevelyan and had hoped to administer government
through a wholly merit-based civil service, but the US spoils system was too strong.](https://image.slidesharecdn.com/881696-250610053416-d2265a03/85/British-Government-In-Crisis-Christopher-D-Foster-34-320.jpg)
![3
Decision-Making: The Exercise of
Ministerial Power
. . . several things should be left to the discretion of him that hath executive power. For
the legislators not being able to foresee and provide by laws for all that may be useful
to the community, the executor of the laws, having the power in his hands . . . has . . .
a right to make use of it for the good of the society.
John Locke (1684)1
M
OST OF WHAT ministers, or civil servants on their behalf, do, is
taking decisions within the law and bounds set by government
policy. The kinds of decision made varied between departments, but
most secretaries of state themselves: make executive decisions generated by
departmental activities; allocate and authorise expenditure; decide how to
respond to serious criticisms in Parliament, as by setting up an inquiry or other
expedient; decide how to handle business with colleagues, Parliament and the
press or unexpected emergencies like dealing with a strike; and make public
appointments.
Decision-making was and remains the most evident expression of ministerial
power, far more than lawmaking, something often forgotten by those who have
recently argued for the replacement of our political by a legal constitution.2
Some decisions were urgent, some needed a rapid response, while some, involv-
ing wide and slow consultation might proceed through green and white papers:
not only major legislation, but a Defence proposal to buy equipment from
abroad or DHSS needing to deal with the suddenly perceived dangers of lead in
petrol (see below chapter 4).
THE PRACTICE OF DECISION-MAKING
Ministers were involved in most decisions until the First World War, when
comparatively few were made; but, especially during the two world wars, their
1
Locke [1690] (1924) 199. Locke attributed that right to ‘the Common Law of Nature’.
2
Oliver (2003).](https://image.slidesharecdn.com/881696-250610053416-d2265a03/85/British-Government-In-Crisis-Christopher-D-Foster-45-320.jpg)
![Convention on Human Rights whether a Myra Hindley should be kept in prison
was considered better decided not by an official under rules or a judge, but by a
Cabinet minister responding to public opinion and able to defend his decision in
the Commons. His was a more authoritative expression than the courts of how
public opinion wanted administrative discretion used.15
A good performance on
such an occasion ranked high in all quarters of the House, helping prove the
quality of a good minister. It was a way of earning promotion.16
Since the
department’s reputation was raised, it had a positive effect on the morale of
the civil service and the respect in which it held a minister.
NATURAL JUSTICE
Though I do not recall hearing the British lawyers’ phrase, natural justice, used,
I am assured that it was well known to civil servants who regarded it as a guide
to proper administrative action by them and by ministers, not only a set of rules
for the courts.17
It implied being systematically fair.18
It generally required that
the views of interested parties were considered, and that any other relevant evi-
dence was sought and weighed, before any decision.19
How these principles
were interpreted depended on the significance of the decision, work pressures
and the ability to secure ministerial time. It underpinned the convention that if
one party to an issue could see a minister, fairness required that any other party
of substance should see the minister as well. If the minister were too busy to see
all, then an official should see all.20
As a decision travelled up the hierarchy towards the permanent secretary and
the minister, an official might stop it, noting either there was ample precedent
for it or that it was sufficiently like a decision the minister had already taken not
to burden her with it, since her or his consistency made plain what the answer
would be. Economising on busy ministers’ time was an important considera-
Decision-Making: The Exercise of Ministerial Power 37
15 Subsequently the courts, using the European Convention on Human Rights, have ruled against
ministers.
16 Kavanagh (1990) and Riddell (1993) 272.
17 By two permanent secretaries, Sir John Garlick and Sir Peter Baldwin. Ingrained in the system
was that ministers’ and officials’ decisions must be consistent, both with each other and government
policy, otherwise described as not being ‘arbitrary’, ‘irrational’ or ‘unreasonable’; e.g., Wade and
Forsyth (1994) 399–402 (legal, that is not ultra vires, and fair); Craig (1994) 281–334; Wade and
Forsyth (1994) 463–70 (the equivalent to what the USA knows as due process); Breyer (1982) 346–50.
The Sainsbury criteria in 1992, and the Better Regulation unit criteria in 1998, for good regulation
were similar, Daintith and Page (1999) 277–78. Administrative law regards legality, rationality and
propriety, otherwise fairness, as required of ministerial and official decision-making. They are dif-
ferent words for the same qualities. For this I am indebted to Professor Loughlin.
18
An account of ‘fairness’ as it appeared to a Cabinet secretary, can be found in Hunt (1993)
120–21.
19
However just whose views should be considered in making a decision could be a difficulty, just
as rights of representation are often difficult for lawyers. Baldwin (1995) 36.
20
Cf Lord Diplock, ‘Exposition of the Process of the Principles of Judicial Review’, in Council of
Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 408, quoted in Wade and
Forsyth (1994) 1012–14.](https://image.slidesharecdn.com/881696-250610053416-d2265a03/85/British-Government-In-Crisis-Christopher-D-Foster-49-320.jpg)
![and now dried into hay. Over all a deep silence which even our Arab
companions seemed fearful of breaking; when they spoke it was in a
half whisper and in few words, while the noiseless tread of our
camels sped stealthily but rapidly through the gloom without
disturbing its stillness."[9] For one hundred miles the route for Israel
lay through this wilderness; and it is hardly possible to escape the
conviction that although little is said of the experiences of the way
the tribes must have suffered enormously and been greatly reduced
in number. As for cattle, we must conclude that hardly any survived.
Where camels sustain themselves with the greatest difficulty, oxen
and sheep would certainly perish. There had come the necessity for
a rapid advance, to be made at whatever hazard. All that would
retard the progress of the people had to be sacrificed. There is
indeed some ground for the supposition that part of the tribes
remained near Kadesh while the main body made the long and
perilous detour. The army entering Canaan by way of Jericho would
as soon as possible open communication with those who had been
left behind.
The only recorded episode belonging to the period of this march is
that of the fiery serpents. In the Arabah and the whole North
Arabian region the cobra, or naja haie, is common, and is
superstitiously dreaded. Other serpents are so innocuous by
comparison that this chiefly receives the attention of travellers. One
incident is recorded thus by Mr. Stuart-Glennie:—"Two cobras have
been caught, and one, which has been dexterously pinned by the
neck in the slit end of a stick, its captor comes up triumphantly to
exhibit.... After a time the fellow let it go, refusing to kill it, and
permitting it to glide away unharmed. This I understood to be from
fear—fear of the vengeance after death of what, in life, had been
incapable of defending itself. At Petra ... the snakes which Hamilton,
a fearless hunter of them, killed, the Arabs would not allow to lie
within the encampment, asserting that we should thus bring the
whole snake-tribe to which the individual belonged to avenge the
death of their kinsman." Whether all the serpents that attacked the
Israelites were cobras is doubtful; but the description "fiery" seems](https://image.slidesharecdn.com/881696-250610053416-d2265a03/85/British-Government-In-Crisis-Christopher-D-Foster-60-320.jpg)
![By the "Midianites" we must understand the Bedawin of the time,
the desert tribes which possibly had their origin in Midian, east of
the Elanitic Gulf, but were now spread far and wide. On the borders
of Moab a large and important clan of this people fed their flocks;
and to their elders Balak appealed. "Now," he said, "shall this
multitude lick up all that is round about us, as the ox licketh up the
grass of the field." The result of the consultation was not an
expedition of war but one of a quite different kind. Even the wild
Bedawin had been dismayed by the firm resolute tread of the
Israelites, a people marching on, as no people had ever been seen
to march, from faraway Egypt to find a new home. The elders of
Moab and of Midian cannot decide on war; but superstition points to
another means of attack. May they not obtain a curse against Israel,
under the influence of which its strength shall decay? Is there not in
Pethor one who knows the God of this people and has the power of
dreadful malediction? They will send for him; Balaam shall invoke
disaster on the invaders, then peradventure Balak will prevail, and
smite them, and drive them out of the land.
There can be no doubt in what direction we are to look for Pethor,
the dwelling-place of the great diviner. It is "by the River," that is to
say, by the River Euphrates. It is in Aram, for thence Balaam says
Balak has brought him. It is in "the land of the children of Ammo"
(xxii. 5), for such is the preferable translation of the words rendered
"children of his people." The situation of Pethor has been made out.
"At an early period in Assyrian research," says Mr. A. H. Sayce,[10]
"Pethor was identified by Dr. Hincks with the Pitru of the cuneiform
inscriptions. Pitru stood on the western bank of the Euphrates, close
to its junction with the Sajur, and a little to the north of the latter. It
was consequently only a few miles to the south of the Hittite capital
Carchemish. Indeed, Shalmaneser II. tells us explicitly that the city
was called Pethor by 'the Hittites.' It lay on the main road from east
to west, and so occupied a position of military and commercial
importance." Originally an Aramæan town, Pethor had received, on
its conquest by the Hittites, a new element of population from that
race, and the two peoples lived in it side by side. The Aramæans of](https://image.slidesharecdn.com/881696-250610053416-d2265a03/85/British-Government-In-Crisis-Christopher-D-Foster-73-320.jpg)
British Government In Crisis Christopher D Foster
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- 5. BRITISH GOVERNMENT IN CRISIS Why are we badly governed? Why has a system of government—the envy of the world as recently as the 1970s—developed so many defects? Why is there such a gulf between political classes, who seem to believe the position satisfactory or inevitable, and the general public, increasingly disaffected by politics and gov- ernment? Personalities matter in politics, but too much current discussion fastens on them. With that focus one may easily conclude nothing has changed. We have had presidential Prime Ministers before. We have had relations between Prime Minister and another leading minister as tense as those said to exist between Blair and Brown. But if one looks beneath the surface we find great changes in how government and the political system function. They can reasonably be called revolutionary and are in many respects disturbing. That is the argument of this book. The book argues that the defects are not attributable to one political party. Some factors are outside politicians’ control: the globalisation of economic activity; the changes in international politics after the end of Soviet Russia; the adverse consequences of more dominating and competitive media. Some other factors are widely recognised: the decline of the Cabinet and the marginalising of Parliament; the influence of spin on our political culture; the increased role of political and special advisers. But others are not as well understood. Among them are the decline in the authority of many ministers, the undermining of the constitutional position and consequent effectiveness of the civil service, the frag- mentation of government and the public sector into a mass of bodies with com- plex but ill-defined relations between them, and the ramifying of a system of government which, despite its protestations, is less interested in delivering results than managing news. The book traces these developments, especially over the last 25 years, but most intensively since 1997. It looks to a major change in the ways of gov- ernment. It doubts whether a change of Prime Minister or party would remove current defects. It considers other possible alternatives, particularly a constitu- tional change to a ‘presidential’ system of government, or the introduction of a legal constitution. It concludes by arguing that, although venturing in new and untried directions might seem attractive, improvement—radical improve- ment—of the system we have is more likely to achieve better government and restore public confidence.
- 7. British Government in Crisis or The Third English Revolution SIR CHRISTOPHER FOSTER OXFORD AND PORTLAND, OREGON 2005
- 8. Hart Publishing Oxford and Portland, Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA © Christopher Foster 2005 Christopher Foster has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salter’s Boatyard, Folly Bridge, Abingdon Road, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail: [email protected] WEBSITE: http://www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1–84113–549–6 (hardback) Typeset by Hope Services (Abingdon) Ltd. Printed and bound in Great Britain by MPG Books, Bodmin, Cornwall
- 9. To our grandchildren—Emily, Arthur, Miles and Max— Whose generation’s task it will be to clear up the mess ours has made
- 11. Contents Introduction: What Has Gone Wrong? 1 Part 1: The Old Regime 5 1 Parliament 7 2 The Constitution Acquires a Third Element: The Civil Service 20 3 Decision-Making: The Exercise of Ministerial Power 33 4 Laws That Work 46 5 Cabinet Tries to Cope 60 6 Overload and Gridlock: The Old Regime’s Decline 73 Part 2: First Stages of Revolution 87 7 Margaret Thatcher 89 8 The Poll-Tax 101 9 Major: The Counter-Revolution That Failed 111 Part 3: Background to the Revolution 125 10 The House of Commons: Less Representative, Less Effective 127 11 The Spread of Grass-Roots Anarchy 141 Part 4: The Revolution 157 12 Blair’s Cabinet: Monarchy Returns 159 13 The Excesses of News Management 176 14 Ministers’ Diminished Standing 191 15 Civil Service: End of Northcote-Trevelyan 207 16 Nadir of Government: The Railways 223 17 Summarising the Revolution 238 Part 5: What Next? 249 18 Resilience or a Third Presidency? 251 19 A More Legal Constitution 263 20 Restoration 278 Conclusion: Where Do We Go From Here? 289 Appendix: The Author’s Relevant Experience 299 Bibliography 301 Index 313
- 13. Introduction WHAT HAS GONE WRONG? W E ARE BADLY governed. Some reasons for this are now widely acknowledged: Cabinet being replaced by prime ministerial govern- ment; the dominance of a political culture of spin; the rise of unelected special advisers and political cronies to positions of great power; the marginalising of Parliament and the substitution of the media as a 24 hour a day forum for political debate; but most important our inability to restrain a perilous and deeply flawed foreign policy in Iraq or to bring about a lasting improvement in our public services despite more billions spent on them. We have a government which seems to think leadership consists in issuing never ending, but frequently changing, streams of instructions and then is surprised the public sector does not immediately jump to it and implement the latest. But there is much more—and more fundamental—than that which I will argue has been a revolution in how we are governed, with an outcome as yet too unstable to last. We seldom any longer produce good new laws. No surprise that almost as soon as one law is passed another initiative leads to another law on the same topic. Our white and green papers are so spun as to be normally uninformative and often unintelligible. The civil service is in danger of being politicised and demoralised. The structure of government and the public sector has become too fragmented to be manageable. The PM is too grossly overloaded to achieve what is expected of him. He has no time, if he had the inclination, for much beyond spin and over-hasty decision-making. The job has been refashioned to suit only people with similar attributes to his. However, though the Blair administration has made government worse, the debilitating revolution started well before his. This book is my attempt to understand what has happened and what can be done about it. In different capacities, I have spent more than 40 years advising or commenting inside and outside government. I started to feel something was seriously wrong when after several years I again found myself near the centre of power as an adviser on rail privatisation. I had been involved in another major policy failure, the poll-tax, but had believed that fiasco was due to one person’s wilfulness, namely Margaret Thatcher, and could have been averted but for her. The origins of rail privatisation convinced me something was systemically wrong. We no longer had—as I remembered us having in the 1960s and 1970s—the time or the
- 14. capability to be thorough enough to explain to ourselves, to Parliament and the public just what we were attempting, and therefore to make reasonably sure what was practical and would work. Like many others—all the more so because I was a long-term Labour sympa- thiser—I had hoped Blair would rescue and improve government. From my vantage-points as a non-executive board member of Railtrack, vice-chairman of the RAC and then chairman of the RAC Foundation, I have seen attempt after attempt fail to get a decent, workable, environmentally-friendly transport policy. A flawed rail privatisation, which could have been put right, has been turned into a disaster from which the railways may never recover. Meanwhile road congestion grows and we have no sensible policies to tackle it, only unend- ing spin. I looked to see if similar factors have held back improving education, the NHS, and crime and disorder. I believe they have. This book is an attempt to explain what has gone wrong and an apology for my failures, especially over the poll-tax and rail privatisation. If one believes, as I do, that British government in the past, though full of imperfections, was better, then one is under an obligation to say how and why. In this book’s first chapters I have attempted an honest assessment—much helped by others who knew it—of the strengths and weaknesses of what I call the Old Regime, that is, before the Revolution; also of why it fell; and whether, if improved, it might have developed into something more satisfactory than that which we now have. I believe it could have done. I then describe the changes in how we are governed which took place under Thatcher. I also review the failure of the poll-tax. Then I consider the counter- revolution John Major attempted and, after it failed, the further decline in the quality of government which his administration brought about. To explain where we are now I discuss Cabinet, news management, the altered standing of ministers and the undermining of the civil service under Blair. I discuss the plight of the railways as a concentrated example of most of the failings of modern British government combining to make a difficult situation worse. I summarise the Revolution before considering what is likely to happen next and what I believe most needs to be done. I am grateful to those with whom I have discussed these matters over many years and in particular for the generosity of their recollections and comments to many friends and acquaintances who have commented on draft chapters of this book. It would be invidious to single them out, but some have given me un- believable help throughout this project, several more have commented on every chapter, others on all those of which they had direct experience: Andrew Adonis, Christopher Brearley, Sir Patrick Brown, Lord Butler of Brockwell, Chris Castles, Sir John Chilcot, Sir Geoffrey Chipperfield, Vic Cocker, Lord Croham, Tam Dalyell, MP, John Edmonds, Professor Andrew Evans, Lord Freeman, Sir John Garlick, Professor Stephen Glaister, Sir Terence Heiser, Professor Eric Hobsbawm, Lord Hoffmann, David Holmes, Professor Christopher Hood, Sir Robert Horton, Lord Howe of Aberavon, Lord Hunt of 2 What Has Gone Wrong?
- 15. Tamworth, Professor George Jones, Edmund King, Sir Timothy Lankester, Professor Martin Loughlin, Lord MacGregor of Pulham Market, Anthony Mayer, Professor Iain McLean, Sir Nicholas Monck, Lord Morris of Aberavon, Sir Patrick Nairne, Nigel Ogilvie, Sir Edward Osmotherly, Francis Plowden, David Rayner, Lord Richard, Sir Michael Scholar, Andrew Smith, John Smith, John Swift, Lord Waldegrave, John Welsby, Lord Wilson, Christian Wolmar and Philip Wood, but also serving civil servants in many departments and other public servants who by convention are not named. None is responsible for my use of those recollections and comments. At my old friend, Tam Dalyell’s, suggestion, I had useful conversations with a number of current MPs: Kevin Barron, Andrew Bennett, Jon Cruddas, Louise Ellmann, David Hamilton, Tom Harris, Gerald Kaufman, Andrew Lanslie, Helen McEchan, Anne Mackintosh, Theresa May, Clare Short, Chris Smith, Graham Stringer and David Wright. I interviewed some because they were ex- ministers, but most because as recent arrivals in the Commons I was interested in their appraisal of their roles as MPs. Again, though I could not have written my chapter on Parliament to-day without what they told me, none is responsi- ble for the use I have made of what they said. My greatest thanks goes to my wife for her patience, to Jo Abbott, who was my secretary at the RAC Foundation, for her indefatigability in collating and circulating chapter drafts, and in arranging meetings, and to Sebastian Foster for editing my typescript. Christopher Foster London December 2004 Introduction 3
- 17. PART 1 THE OLD REGIME
- 19. 1 Parliament Of Parliament: . . . its various members ought to represent the various special interests, special opinions, special prejudices to be found in that community. There ought to be an advocate for every particular sect and a vast neutral body of no sect—homogeneous and judicial like the nation itself. Bagehot (1867)1 Of Accountability: Democracy is government by explanation. A.J. Balfour2 T HE PRINCIPAL FUNCTION of Parliament, and particularly the House of Commons, has not been to be part of government or a legisla- ture, which in any true sense it is not, but to hold ministers to account. To do that effectively, it has been important that members between them should have a wide range of experience and be in contact with as many opinions as pos- sible at home and abroad. So constituted, it has also been able to provide enough ministers of quality and some in each generation who were outstanding. Governments showed their strength and cohesion, or their weakness, through their performance in the House of Commons. The accountability of the Executive to Parliament, though not without shortcomings, remained effective until near the end of the 20th century. PARLIAMENT AND THE EXECUTIVE The British constitution, because forged in 17th century battles between Crown and Parliament, is bi-partite, not tri-partite: the position of the judiciary (and the civil service) being derived from the powers of the Crown and not separately entrenched in law.3 In Britain sovereignty is said to belong to Parliament, or more strictly the Crown in Parliament. However, the monarch’s veto on legislation has long been theoretical and the House of Lords’ veto limited 1 Bagehot (1997) 16. 2 Quoted in Howe (1994) 77. 3 Tomkins (2003) chs 2 and 3.
- 20. by Parliament acts and conventions, leaving the Commons intact so that in practice, because of direct election, it possesses the sovereign power of Parliament. However, its sovereignty is legal fact, not political reality. Rather, as the public lawyer John Griffith has said, practical sovereignty belongs to the Executive, which has the Crown’s governing powers, provided it has the sup- port of the Commons, a fact modified but not replaced by entry into Europe.4 Every generation needs to ask how effective, without being disabling, are the checks on that sovereignty, which Parliament and other elements in the consti- tution provide. That question precipitated the Civil War and the Glorious Revolution. In the 1920s, a lord chief justice wrote a book about The New Despotism.5 In 1978 Lord Hailsham claimed sensationally that we have an ‘elec- tive dictatorship’, a phrase so catchy that it is still used, despite great changes in the checks and balances on the Executive since then.6 THE SEPARATION OF POWERS What Bagehot called the fusion of ministers and Parliament—the fact that the first are drawn from the second—has been the strongest argument against what has been mis-called the separation of powers between Legislature and Executive (mis-called because what would have been involved was the separation of people into different institutions.7 The powers are already separate.)8 Eulogising the British constitution in the 18th century, Montesquieu had thought the separation of powers between its Executive, Legislature and Judiciary its best protection against the tyranny he observed in France.9 He assumed each would have a distinct motivation: to govern, make laws and enforce them, but Jeremy Bentham pointed out that such separation in Britain was largely a fiction. Cabinets then contained several judges as well as peers and MPs. Judges sat in Parliament and Cabinet. MPs were regularly elevated to the bench. Bentham argued that they did not have distinct motivations according to their function, but were equally motivated by financial self-interest.10 He was right to believe that the art of constitution-making was to find expedients—usu- ally laws, rules and conventions—which would have the effect of constraining people’s private interests and aligning them with whatever was held to be the public interest governing the performance of their public functions.11 It was a 8 The Separation of Powers 4 Griffith (1963) 401–2; also Smith (1999) 11. 5 Hewart of Bury (1929). 6 Hailsham (1978); Daintith and Page (1999) 17. 7 I am indebted for this point to Professor George Jones. 8 Also Tomkins (2003) ch 2. 9 Montesquieu [1748] Book XI, ch VI. 10 Bentham [1776] (1948), mainly ch 3. Even into the second half of the 20th century MPs were often made judges. 11 Most extensively explored in relation to the government regulation of industry, Laffont and Tirole (1993).
- 21. point, too, of which the authors of the American constitution were well aware, though too few contemporary reformers are.12 But such expedients do not need such separation. It has been the opposite of British practice in Parliament, Cabinet and political decision-making which has valued bringing together people of different background and motivation.13 Because ministers sit in Parliament, they become better known and their char- acters better understood, which enhances their practical accountability. The effectiveness of that accountability was most considerable when a wide range of experience and knowledge found expression in the Commons, as happened both in its corrupt period until the mid-19th century and during its period without substantial allegations of corruption until near the end of the 20th century. The effectiveness dwindled thereafter when charges of sleaze and corruption led to severe limits being set on MPs’ ability to gain and use outside experience. They powerfully reinforced other reasons why it not only became dominated by pro- fessional politicians, but discouraged them once elected from broadening their experience and understanding.14 How that happened and its consequences for government will be important later. Sadly the crude doctrine—that it implies separate institutions, not just separate powers—has returned inappropriately to influence ideas on constitutional reform.15 THE REFORM OF PARLIAMENT Parliamentary corruption was significant while its members were actively making laws and many were government placemen; when Whitehall and Westminster worked through trading favours, while courtiers on the make unashamedly surrounded kings. In the 18th century the crown deliberately over- came the political instability of the 17th century—between court and country, region and religion—by systematic corruption mainly to secure a majority in Parliament. Many seats were for sale for money or favours. Once in Parliament MPs could, and many did, make money by promoting, supporting or sometimes opposing private bills to serve a multitude of private and local interests. Because central government had little to do with the economy; because there was parliamentary resistance to any form of centralised, crown-directed protectionism; because there were enough places in which industry could develop unaffected by local restrictive practices and perhaps because of the Parliament 9 12 Madison, Hamilton and Jay (1992) 263–7, ‘Ambition must be made to counteract ambition’. 13 Lord Hoffmann in conversation, and in his excellent Hoffmann (2001) has drawn my attention to the importance of getting past the arid formalism of dogmatic interpretations of the doctrine of the separation of powers to what really matters; to its applicability in British circumstances; and to the good sense of James Madison in The Federalist in recognising that separation need not and can- not be absolute, Madison, Hamilton and Jay (1992) 246–47. 14 Riddell (1993) 19–23. The idea of parliament as the prime focus and disseminator of public opinion is in Crick (1964) 273. 15 Bingham (2003); Oliver (2003) 345–47.
- 22. influence of Adam Smith, this corruption did not check the industrial revolution and therefore the take-off of economic growth. However, it did withstand efforts to reform Parliament and administration, not only by radicals and revolutionaries, but even by the Younger Pitt as Prime Minister.16 This ‘market-place’ Parliament survived the 1832 Reform Act. It was at its height in the 1840s and 1850s when the statutes needed to build the railways were passed with extensive corruption.17 A multitude of rail and other statutes, serving private interests, dominated the legislative programme.18 As in the US Congress 150 years later, it was difficult to pass legislation which did not benefit powerful monied interests (but not impossible, as the anti-slavery movement, repeal of the corn laws, the factory acts and parliamentary reform showed)19 . By the 1860s, parliamentary corruption appeared so scandalous as to prompt reformation: a tremendous clearing up of its processes and procedures that has lasted into our day. Gladstone was probably most responsible.20 The impetus was preparation for the 1867 Reform Act. It raised the prospect of an equally corrupt Parliament composed more of representatives of the middle and lower middle classes. It therefore posed the classic dilemma of how to make democ- racy safe for the ruling classes. Educated on Plato, Aristotle and Livy, and so well aware of democracy’s instability, they knew the ancient democracies had transferred wealth from rich to poor and had fallen partly as a consequence. To restrain headlong democracy—Carlyle called it ‘Shooting Niagara’—they replaced corruption with political, judicial and administrative integrity.21 At the same time, the development of better processes of parliamentary accountability exposed old ways of trading favours within government. Exposed, they were largely eliminated.22 THE REAL SAFEGUARDS In The Federalist James Madison stressed how safeguards against excessive power tending to corruption are best built in when a constitution was con- 10 The Real Safeguards 16 Ehrman (1969) 223–36, 282–326. 17 Lewin (1936); Alderman (1973); Foster (1992) ch 1. 18 Rail and many other private laws were effective because of the self-interest of those who com- posed bill committees, though unsurprisingly better at safeguarding promoters’ and landed interests than rail-users’ long-term interests, Foster (1992). Members of congress may accept contributions to their election funds from promoters. Hence the strong impact vested interests have on much US leg- islation. 19 McLean (2001) 46, shows that votes for such measures were usually smaller and across parties. 20 Morley (1906) ii, 239, also 363 said that while Gladstone believed parliamentary procedures were of the first importance to the efficiency of government, he left no papers about it and therefore Morley would not elaborate on it. Subsequent biographers have followed his example. But see Ostrogorski (1902). 21 Carlyle [1867] 1899, 1–48. 22 I am indebted to Professor Dawn Oliver of University College London for this point. I discuss corruption more fully in Foster (2001).
- 23. structed, difficult thereafter.23 But Gladstone’s generation managed it. The standing orders established in the anti-corruption drive of the 1860s built on ancient custom that only the Crown, not Parliament, could originate taxation or expenditure. Only government, and no individual MP, could propose or modify any tax proposal or expenditure item and only one such proposal could be discussed at a time.24 Moreover, Gladstone kept absolutely separate the dis- cussion of raising revenue—in the budget—from discussions of expenditure, later collected in the annual expenditure statement.25 Under his influence, the Commons adopted standing orders to prevent a member chairing a private bill committee in his own financial interest, or packing it with fellow MPs with the same or a similar interest: for the first time chairmen of bill committees became, and have remained, neutral. These changes to standing orders, when adopted elsewhere in the Commonwealth, became known as the ‘Westminster rules’.26 A further protection was that ministers came to introduce almost all legisla- tion for the government (in contrast to the United States, where bills are introduced by senators and members of congress who are not part of the execu- tive).27 This practice, together with party discipline, further prevented MPs from using their power to block and amend legislation as a lever to get ministe- rial decisions on other matters in their favour (known as ‘log-rolling’), except when the government has a small majority. Moreover, when bills are going through committee, British ministers normally successfully resisted amend- ments, other than their own, until the 1990s.28 These rules were reinforced by the growth of party discipline allowing an elected government to have a sub- stantial chance of carrying their legislative programme while they retained a comfortable majority. Almost all MPs were whipped so that their votes could not be for sale. An outcome was a strong protection against backbenchers achieving or materially influencing legislation at the behest of vested interests or their own inclinations.29 With over 600 MPs, no vested interest was likely to have enough members in its pocket to pass or defeat legislation improperly. It remains the only respectable, but powerful, argument, for more than 600 MPs (though the enormous workload English MPs now have as constituency social workers (see below chapter 10) may now be another).30 By such arrangements Gladstone’s generation deliberately destroyed most of the opportunities for jobbery and log-rolling which had been such a prominent Parliament 11 23 Madison, Hamilton and Jay (1992) 260–67. 24 That only the Crown, that is government, could make expenditure proposals was an ancient convention, Daintith and Page (1999) 107–9. 25 Reid (1962). 26 Reid (1962) 11. 27 cf. Amery (1953) 12. 28 Both John Stuart Mill (1910) 231 and Walter Bagehot (1997) 60, 89, pointed out that laws are not well made in committee, an opinion Hobbes, Blackstone, Bentham, Rousseau and Madison also held and a truth that many contemporary parliamentary reformers are in danger of forgetting. For the other citations, Waldron (2001) 43, 51–53. 29 Also Oliver in Heywood (1997). 30 I am indebted to Rt Hon John MacGregor for this point.
- 24. feature of the 18th-century and earlier 19th-century Parliament.31 Together they prevented Parliament, and Commonwealth Parliaments based on the Westminster model, from developing like the US congress. Its committees normally consider individual expenditure proposals and related tax proposals together, which allows their members to practise ‘pork-barrel’ (a term used when the money flows into election or party funds rather than into politicians’ pockets) and log-rolling politics. By contrast, members of Parliament, apart from ministers, had and still have no direct decision-making powers over pub- lic policy. Except when the government has a small or no majority, parliamen- tary rules have successfully ensured that MPs do not have improper, or corrupt, influence over public legislation. But they were still free to challenge ministers with all the opinions—their own and other people’s—they believed relevant to an issue. These and other late Victorian changes altered the functions of Parliament under the constitution. No longer the legislature in a strict sense, it ratifies laws (which whipping in general makes a formality); but does not for the most part originate them or decide their content. Besides being a nursery for ministers, the importance of MPs lay then and until recently, (1) in the pressure of their opinions on ministers, the value and variety of which depended on the breadth of their experience, and (2) broadened by that experience, in the shrewdness and understanding they developed in penetrating ministers’ evasions and dis- claimers to hold them truly accountable, as well as (3) to some extent in their effectiveness in mobilising their opinions through the Parliamentary Labour Party, the conservative members’ 1922 committee and other backbench committees. Their effectiveness was enhanced because they became MPs after a career or occupation which also gave them knowledge as well as an under- standing of people. In that way they were influential, embarrassing ministers to do better, altering ministerial decisions, preventing or forcing changes in legis- lation. These late Victorian changes altered what the corruption of MPs—as distinct from ministers—could achieve. And there it stayed, until the sleaze alle- gations of the 1980s and 1990s, not because of superior moral virtue—it is wiser to assume human nature remains the same—but because of safeguards built into the system. ACCOUNTABILITY AND MINISTERIAL RESPONSIBILITY The origins of ministerial responsibility were in the 17th century constitutional invention by Parliament that the king’s ministers were accountable to it, not to 12 Accountability and Ministerial Responsibility 31 John Dunn in Dunn (2000) 63–69, argues how difficult it is to design procedures to avoid cor- ruption. However, the late 19th century adoption of the appropriate Parliamentary rules, and of a civil service chosen by merit and with tenure, as well as the greater influence of whipping in Parliament, have been responsible for providing such safeguards for MPs, ministers and officials.
- 25. the Crown which had been the Tudor position.32 Even before there was a Cabinet in the modern sense, two conventions developed regarding the collec- tive and the individual responsibility of ministers. Ministers were not held per- sonally responsible for policy, because that by convention was a collective responsibility, though they usually answered for government policies as they affected their department. But they were held responsible for everything else to do with their departments. In the middle to late 19th century that classic theory found expression first in prime ministerial statements;33 and then in constitu- tional textbooks.34 Again as early as the 17th century, the judges came to regard Parliament as a more sensible check on the Executive’s misdeeds than the courts.35 The appropriate punishment might be the resignation of the minister or even the ministry. Such punishment demonstrated the sovereign political power of the Commons over the Executive. The historically-minded think first of the greatest occasions. Of Chamberlain brought down in the two-day debate over the fiasco of the Norway campaign, knocked out by speeches by Attlee, Admiral of the Fleet Sir Roger Keyes, L S Amery and Lloyd George of which best remembered is Amery’s heavy punch from Cromwell: ‘You have sat too long here for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go.’36 Or of how, less well known, in another debate after the fiasco of the Charge of the Light Brigade in the worst days of the Crimean War, a speech by Lord John Russell brought the Aberdeen government down, as a speech by Sir Geoffrey Howe, also on resigning from the government, was to bring down Margaret Thatcher.37 Conversely, an anthology could be made of the speeches by which great orators have extricated themselves from tight corners, as did Lloyd George over the Marconi and Maurice affairs; another of failures to deliver a knock-out blow, as Neil Kinnock failed to finish Margaret Thatcher in the Westland debate in 1986 or Michael Howard, Blair, in 2004 over Iraq; and a third of when lesser ministers failed to extricate themselves, as John Nott over the sinking of the Belgrano or when Leon Brittan as Home Secretary pleased nobody by his equivocations over capital punishment.38 But to limit accountability to presumed offences is misleading. Whatever ministers do in Parliament, like announcing a decision or explaining a bill, is rendering an account to Parliament which only becomes an offence if Parliament judges it one. Not only what ministers say to Parliament, but also the Parliament 13 32 Tanner (1928) 50; Marshall (ed) (1989) 2. 33 E.g. Earl Grey in 1858, quoted by Woodhouse (1994) 5, 6; Lord Salisbury in 1878 and Gladstone in 1883, quoted by Madgwick in Herman and Alt (1975) 77–78. 34 Bagehot (1997) ch 5; Dicey [1885] (1959) 329, 364, 374–75, 382–83; Anson (1908) 387–401; Jennings (1959) 112–14; Woodhouse (1994) ch 1, 2. 35 Woodhouse (1994) 4 36 Jenkins (2001)576–82. 37 Ridley (1970) 431–33; Molesworth (1886) iii, 34–38. 38 Nott, Hansard, 3/4/82; Dalyell (1987) 14–15. I am indebted to Ruth Winstone of the House of Commons Library Parliament and Constitution Centre for these references.
- 26. white papers and other public documents they lay before it, give an account of their policies. Edmund Burke’s great speeches may have been meant more for reading than hearing.39 Was he not called the Dinner Bell of the House of Commons? But there have been great occasions like Sir Robert Peel holding a packed Commons silent for four hours as he explained his reasons for changing his mind on Catholic Emancipation and persuaded enough to follow him into the division lobbies to secure the measure.40 Or Gladstone’s great budget speeches ordered like a white paper, full of statistics and closely reasoned, when he too held the House in rapt attention for hours on end. Effective instances can be found throughout parliamentary history until not long ago. For example in 1974, in my own recollection, Tony Crosland, bound by an undertaking made during the election campaign, had to defend his decision to let the Clay Cross Councillors off the surcharges which the law had placed on them for defying the previous government over council housing rents. Even so experienced a parlia- mentarian and debater was daunted by the ordeal of preparation and by the knowledge that many of the best debaters as well as the best informed opinion in the House, even in his own party, believed the retrospective law needed to let them off was wrong.41 However the daily bread of accountability was not grave offences and stupendous explanations, but the mass of lesser matters—from failure to recog- nise or deal with a problem, or wasting money to incompetence—for which peers and Commons expected an account from ministers.42 Accountability from major to minor matters has always been the staple fare of Parliament and has influenced the development of many procedures used to handle parliamentary business: debates, committee work and parliamentary questions. So the Commons has been able to extract information from the Government, frequently against its will, and therefore on occasion to embarrass ministers.43 The consequent embarrassment was also in the media. From earliest times until the 1980s, Parliament was reported in the media where such embarrassments, even over minor matters, could be prominent.44 More prosaically, ministers may be challenged to show that they know what they are talking about; that their policies are coherent and that they can answer questions raised by the opposition and their own side of the House. Committees could be a more penetrating, because sustained, mechanism than questioning on 14 Accountability and Ministerial Responsibility 39 Though his effectiveness as a parliamentary orator is stressed both by Ayling (1988) e.g. 26–28, and O’Brien (1992) 139–44. 40 Hansard, 5/3/1829, 728–80. I am grateful to Ruth Winstone for drawing my attention to this stupendous speech. 41 My own personal experience as one of his advisers at the time. 42 Woodhouse (1994) 28–38. 43 Complaints about Parliament’s declining ability to call the Executive to account, because of declining reputation, increased interest in personalities rather than issues and less full reporting in the media, were heard in the 1990s, Woodhouse (1994) 17. But the scrutiny of the Executive still seemed often intimidating enough to us in the 1960s and 1970s. 44 MPs’ letters go straight to ministers; other complaints go lower down and may never reach them.
- 27. the floor of the House. Parliamentary questions were once more effective than now because it was easier to get through a minister’s defences by asking supple- mentary questions. The recent practice of announcing new policies to the media rather than to Parliament was not only a matter of ministers’ wishing greater publicity. It moved accountability, as we shall see, to a forum with different objectives, priorities and standards of truth and fairness in debate. Parliamentary accountability worked best when legally and practically an activity was under the minister’s control. The main reason why the mid-19th century attempt to devolve powers to independent boards and other agencies was reversed, was because they were found not effectively accountable to Parliament unless ministers controlled them.45 Parliamentary accountability was more suited to an age before nationalised industries and other large non-departmental public sector bodies. The line usually adopted, that ministers were responsible for policy and the boards for day-to-day operations, was an awkward fudge, both because in practice the distinction between policy and operations was fuzzy and moveable, but because ministers could not in any direct sense control board policy.46 Parliamentary accountability worked better with the large people-factories, which most home departments once contained, issuing licences, inspecting activities, distributing benefits and so forth. There the hierarchies were in control and therefore the minister on top, in the limited sense that, if even the most junior official transgressed, the problem could be soon investigated and brought to the attention of a minister who often had no previous awareness of the activity in question, but then had to defend it. Parliamentary procedures almost always meant there were a few days to estab- lish facts, which was one reason—the sheer variety of questions asked was another—why departments did not develop the kind of instant data banks, which they were to be so criticised for not having in 1997, when information technology was available. Parliamentary accountability presumed that through a statement, contribu- tions to debate, answers to parliamentary questions and letters, or through a process of discovering documents or taking evidence in a parliamentary com- mittee, enough evidence could be found to convict ministers of an offence or show them innocent. That offence was rarely a breach of the law, more often maladministration, but most frequently that the truth had not been told about a developing policy or executive action. Parliamentary scrutiny has been thought most relevant when the offence was ill-defined in law or concerned ministers’ and officials’ use of their discretion within the law. In those circum- stances judgment on the issue depended on the opinion of a minister’s peers in the Commons or Lords. Its longstanding success depended, literally and histor- ically, on a forensic age, when Parliament as a high court believed that, even with offences imprecisely defined, it was sufficiently small, cohesive and Parliament 15 45 Lubenow (l971); Bagehot (1997)102–5; Baldwin (1995)110–11. 46 They had more, but even then, limited power, when the industries were in deficit. Otherwise they were trusts with substantial discretion. See Foster (1971).
- 28. non-partisan, and that its members knew each other well enough, both within and across parties, to act as a jury with a substantial chance of seeing through to the truths behind ministers’ words.47 Those acts of judgement were easier, because, until the 1980s, poor accommodation crowded MPs together in the smoking and tea-rooms and in the corridors. Now they can spend most of their time in their offices with their researchers and need not know each other well. Yet still many MPs believe that face-to-face, they can detect a lying minister. TRUTH AND OBJECTIVITY Important was ministers’ obligation to tell the truth or, more accurately, not to tell untruths which, as we had once learned, was why John Profumo fell.48 I remember Harold Wilson in Oxford, returning as an honorary fellow and dom- inating the Jesus College senior common room, a few days before the crucial debate—I believe he rehearsed his speech to us—as he told us that it had nothing at all to do with sexual morality or a breach of security, only with being found out in lying to the Commons, as years later one was to be told that Clinton’s tribulations, though empowered by his sexual foibles, were because of his alleged perjuries. When I became a civil servant—despite what we all knew about raison d’état and the occasional cases, beloved of old ethics textbooks, when it would be more honourable or in the public interest not to tell the truth—we knew such lying was fraught with difficulty, best kept to a minimum. On the rare inescapable occasions, it was best left to old hands who had the wisdom, experi- ence and reputation to get away with it. This attitude was reinforced in those days of long departmental hierarchies by the fact that the more senior officials did not want to be lied to by their juniors. That it was wrong to lie and that one had better be ready to face the consequences if one did, was an important part of most education. Public service tended to attract those who thought in such terms. But most practical people accepted it was better and safer not to lie, if for no other reason than the high cost of being found out and the effect on one’s career and family, if one were. Whatever other morality was rejected, few rejected this aspect, if only on utilitarian grounds. After all it was an age when the City worked on the principle that someone’s word was his bond. I recall many occasions among officials or with ministers, when the most con- venient answer to a parliamentary question was noticed not to be true. In Robert Armstrong’s version of Burke, being economical with the truth was all right.49 Its acceptability rested first on the logical demonstration, which many had been through, that it was strictly impossible to tell the whole truth about anything, since there was always an infinite amount one could say about every- 16 Truth and Objectivity 47 On the connection between the forms and history of parliamentary accountability and its ori- gins as a high court, see Maitland (1908); also Marshall and Moodie (1964) 178–80. 48 There were also security reasons for his fall. 49 Burke said ‘but, as in the exercise of all the virtues, there is an economy of the truth’.
- 29. thing. There was also the common sense point that one need not volunteer an answer to a question which one had not actually been asked, especially given the scope MPs then had to ask supplementary questions. But the frisson of fear which could attack ministers was salutary, as they realised that they were on dangerous ground when penetrating supplementaries were asked by chance or by guile. The more the answers were tried out with their officials in advance, the clearer it became how vulnerable ministers would be if they strayed from the truth. One saw the folder in which officials dealing with the issue exhaustively set out far more supplementaries than would ever be asked as well as the truth- ful answers to them. It gave officials an opportunity, as well as an obligation, to set out what facts they knew—statistical, scientific, economic or other—which they believed relevant to an issue, given the short time they had to compile it. Ministers were bound by a need not to be factually misleading, but also that their answers should reflect government policy truthfully. Nevertheless when MPs were only fishing to find out what ministers were up to while developing a policy, a minister could usually fall back on the convention that nothing was government policy until approved by Cabinet, though he was still expected not to tell an untruth about it; but if it were maladministration or anything else for which he were ministerially responsible, there was no similar bolthole. There were matters about which ministers and officials could not tell the truth to Parliament.50 Some were commercial in confidence, but they were rarely matters of high policy. Some were secrets which could not be disclosed because of their value to an enemy of the state; but there was a convention for dealing with them: they might be disclosed to the leader of the opposition or other member of the shadow Cabinet under the confidentiality of the privy council oath to which they too belonged. They might be trusted with the secret because they could become Prime Minister or Cabinet minister entrusted with the same or similar secrets. If they could not be trusted because the secret could not command bi-partisan support, then it probably should not be a state ‘secret.’ There were rogues among ministers, who at times and from certain aspects included giants like Disraeli, Salisbury, Lloyd George and Churchill, whose great ambitions could override the conventions and make them mislead their colleagues and Parliament. Ministers, great and small, would not have been human if at times they had not hoped they could get away with a convenient untruth.51 Hence the importance of trust between ministers and their officials— often exemplified in my experience—when ministers would try out lines of defence, and then being told sadly they would not do, until a safe one were found. There were occasions, as with Salisbury in foreign policy and most Prime Ministers since Churchill and Attlee over nuclear policy, when raison d’état had a similar, more defensible consequence of lying to Parliament. But the general Parliament 17 50 There were also stock answers, readily recognised, by which ministers fend off questions before they were ready for them like ‘ I have no plans for X’ or ‘That is a speculative question.’ 51 Dale (1941)110–16.
- 30. presumption was that ministers would always not want to tell an untruth to their colleagues or to Parliament. The consequence of Eden’s lying to the Commons in December 1956, when he denied he had any foreknowledge of the Israeli attack on Egypt, was not a happy precedent.52 As late as the mid to late 1980s, one could find many permanent secretaries who would say they had never, or perhaps only once, had any difficulty with the minister over truth-telling over such a matter in a ministerial statement or answer to a question. One civil servant told me of his shock when a Cabinet min- ister in the early 1990s, having been told that as a matter of fact that X could not be a valid reason justifying a huge expenditure on Y, simply replied that he would take the risk of being found out telling a lie to Parliament. Yet ministers still avoid telling an untruth to Parliament when pointed out to them, especially if they believe the civil servant might be ready to go through the complex and insidious process of making a formal complaint against them. The possibility of their being a minute—as the Butler inquiry should have found in 2004 (see below chapter 17)—showing what the civil service believed to be the truth, remains a discouraging one if an inquiry or tribunal were to call for the relevant papers. Nevertheless one must not exaggerate the penetration the Commons normally used when interrogating the Executive. Supplementary questioning, whether on the floor of the House or in committees, even then, was a poor sub- stitute for the relentless cross-examination possible in a law court or in the US Congress.53 Committees rarely had the knowledge, the staff or the discipline to be so formidable. The traditional approach was often inadequate for assessing departmental performance or the performance of any particular on-going activ- ities, which became more important as the constraints on public expenditure growth grew severe from the 1970s and efficiency in its use therefore mattered more. As over the years the private sector has shown, greater efficiency requires a basically different approach and more regular fit-for-purpose and systematic information (see below chapter 10). Another problem was the growth of rules and regulations which practically were outside parliamentary scrutiny; sec- ondary legislation which received little attention; and tertiary legislation which was outside it altogether.54 But, despite such shortcomings, the House often did expose ministers for what they were, good and bad. PARLIAMENT AS A NURSERY OF MINISTERS As significant, that political education they gained in Parliament trained many to become good, and some very good, ministers. There were obscure 18th cen- tury PMs, but there were also Walpole and the two Pitts. Wellington may have called the Derby Cabinet in 1851 the ‘Who? Who?’ Cabinet. Among its 18 Parliament as a Nursery of Ministers 52 Hennessy (1989) 167. 53 From my own personal experience of both parliamentary and congressional committees. 54 Baldwin (1995) 80–121.
- 31. unknowns was Disraeli. Salisbury’s first Cabinet may have had no one else of quality except Lord Randolph Churchill. But what was remarkable over the centuries, until the end of the 20th century, was what high average quality people with broad experience were attracted to Parliament and became ministers, and how in every generation several were outstanding. CONCLUSION Besides its vital functions in maintaining a government in power, especially when it has a slender or no majority, and as a nursery of ministers, commenta- tors from Bagehot to Bernard Crick and Peter Riddell have rightly maintained that its prime function has been to call ministers to account on whatever they and their departments do: to challenge ministers over their past and proposed actions; to influence ministers by expressing their opinions on them and ulti- mately to approve or disapprove their policies and actions, whenever ministers, willingly or unwillingly, give an account of the actions and policies for which they are responsible. This function—first shaped in its bi-partite battles with Tudor and Stuart monarchs—and its elected status until recently gave the Commons its great authority. However, the Northcote-Trevelyan reforms of the civil service—replacing patronage by merit and political impartiality—were to introduce a third ele- ment into what had previously been a bi-partite constitution, not the judiciary as a check upon the integrity of ministerial power as in the United States, but by setting up a countervailing, but supportive, force closer to ministers. Parliament 19
- 32. 2 The Constitution Acquires a Third Element: The Civil Service Cabinet ministers have . . . a great deal too much to do and much more to do than min- isters in other countries. Lord Hailsham (1978)1 It is extraordinary that in our system of government we both have more ministers than others and in my experience more . . . put-upon ministers than others. Chris Patten (1986)2 I wondered once again at the unique quality of the British civil service: the capacity of its top people to develop a genuine loyalty to a minister who wasn’t here yesterday and will be gone tomorrow. Barbara Castle (1974)3 T HE DOCTRINE OF ministerial responsibility for everything meant British ministers had more legal responsibilities than their democratic counterparts elsewhere: among them handling complaints, making appointments, preparing laws, policymaking, decision-making, bargaining with Treasury, negotiating with many others, managing news, even for managing their departments. To perform and be accountable for so many functions, while seeming on top of all their departments, ministers relied on a special close part- nership with their civil servants, unique to Britain and other nations with a Westminster-style constitution. Unless this chapter seem but a rhapsody for a bygone age—which is not intended—the system of government described had many shortcomings, as will be later apparent. But, while it lasted, it let minis- ters discharge so many functions and enabled them to cope with an ever increas- ing workload.4 By convention, though not in law, the civil service became the third element in the British constitution. 1 Hailsham (1978) 208–9. 2 Interviewed by Hennessy (1989) 323. 3 Castle (1980) 130. 4 Morrison (l959) ch 14 remains an excellent account.
- 33. The Constitution Acquires a Third Element: The Civil Service 21 GROWTH OF THE RELATIONSHIP After the 1945 election had been fought in the middle of the Potsdam conference, only Attlee and Bevin changed in the British delegation, replacing Churchill and Eden. Everyone else, down to Attlee’s valet—such were the days—carried on, as did the policies, to the astonishment of the other world leaders.5 Permanence, continuity and seamless transition have long been characteristics associated with the British civil service. Its excellence in these and other ways depended on traditional relationships with ministers. In the 18th and early 19th centuries, the relevant relationships altered from those between monarch and ministers to ones between ministers and their advisers. Much of the control of Parliament by Crown and ministers depended on their packing public offices with ‘placemen’, often relatives or protégés. Such relations were often mired in corruption and patronage, faults vividly described by Dickens and Trollope. Following the 1854 Northcote-Trevelyan Report that system was gradually cleansed, not only because of the rise of the middle classes and of professionalism, but more because new sustained party allegiances in Parliament made it politically embar- rassing, even dangerous, for an incoming administration to rely on the protégés of past administrations, likely to be disobliging if not disloyal. The 1918 Haldane Report extended that partnership to meet the more complicated requirements of busier government when large executive ministries emerged from the First World War, though still about one-tenth the size of their modern counterparts.6 The Report’s impact came through two closely-linked ideas. First, government required investigation and thought in all departments to do its job well: ‘continuous acquisition of knowledge and the prosecution of research’ were needed ‘to furnish a proper basis for policy’. Government bills and decisions could no longer safely rely on the expertise of ministers, MPs and outside opinion. Second, ministers could not provide an investigative and thoughtful government on their own. Neither could civil servants, but a partnership between both could. It must be extended, however, from the cluster of officials round a minister, typical of 19th century government, to embrace whole departments as the repositories of relevant knowledge and opinion. Haldane did not say how to develop such investigation and thought, except that they should be grounded on a distribution of responsibilities between ministries which has mostly continued to this day. Haldane did not describe partnership because he saw it as normal practice. A way of defining his position is to contrast it with Woodrow Wilson’s, who, as a professor of politics at Yale, 5 K Harris (1982) 266. 6 Haldane (1918); Haldane—who was later to be Ramsay Macdonald’s first Lord Chancellor— had been a colleague of Lloyd George’s in the Asquith government when he had modernised the War Office. The Prime Minister gave him the job of considering what the organisation of government should be post-war.
- 34. and later as US president, had lasting effect on Americans’ very different view of politician-civil service relationships. One recalls an obscure nineteenth-century German political philosopher only because of his influence on Wilson. He, Blunstchli, observed that since laws could never be detailed enough to prescribe what should be done in every case, there must be administrative discretion in decision-making.7 How could it be disciplined so as to be a legitimate inter- pretation of the law?8 Wilson’s answer was also Germanic, indeed Weberian.9 Once the laws were made, politicians should tie the bureaucracy down to the greatest extent possible by rules to constrain their administrative and executive actions, and they should be published, as they still are in the USA, running annually into thousands of pages.10 Such a rule-based administration had been established between his 1887 article and his becoming president in 1912.11 Though congress may challenge these rules, political accountability in America has been as incoherent and ineffective as it is now becoming in Britain.12 Instead, effective accountability for these rules is to the US courts, while in con- tinental Europe it is usually to institutions of administrative law.13 Court-based accountability remains important because in its various American and conti- nental European forms, it is the other main way of limiting the unbridled power of the executive, should the British partnership alternative appear irretrievably broken down. Given these bureaucratic rules, the Wilson approach required the greatest possible separation of powers between politicians and officials, the latter taking the decisions on specific cases to reduce political interests and corruption influencing administrative decisions. Its practical effect is still observable, though somewhat eroded by the politicisation of the top levels of the US execu- tive.14 Through the US spoils system presidents exercise some power over administrators through political appointments, needed in the US model to control the officials below and avoid rule by bureaucrats. However, appointees to senior positions have many different backgrounds, motivations and interests. Once appointed, they can be hard to get rid of, therefore to influence, so that the 22 Growth of the Relationship 7 Bluntschli (1898) 521–23. In 1690 John Locke had similar, but fuller and more exact, thoughts on the practical necessity of administrative discretion in interpreting the law, Locke, [1690] (1924) 199–203. 8 Dicey was among those keenest to limit ministerial and official discretion, but was only able to make it plausible because of the extreme laissez-faire position he took up, Jowell in Jowell and Oliver (1989) 3–8. 9 W Wilson (1887) 213–14. 10 Breyer (1982). 11 In practice, unlike Britain, each part of the federal bureaucracy came to make the rules for itself because American politicians never had time to devise them. How the US courts exercised this func- tion was not codified until the Administrative Practices Act, 1946, see Breyer (1982); Oliver (2003) 323–24. 12 Campbell & Wilson (1995) 251. I am indebted for this interpretation of Haldane to Thomas (1978). Later I found a similar idea, though not the metaphor, in Dale (1941) 121–30. 13 On the difficulties of rule-based administration, see Jowell in Jowell and Oliver (1989). 14 Wilson was an admirer of Northcote-Trevelyan and had hoped to administer government through a wholly merit-based civil service, but the US spoils system was too strong.
- 35. White House is often unable to overrule their decisions or co-ordinate their behaviour. Haldane’s solution to this problem of administrative discretion was equally, but differently, Germanic, indeed Hegelian. Instead of separation of powers, or functions, between temporary politicians responsible for policy-making and permanent administrators responsible for implementation, he advocated fusion—his word—that is, partnership.15 His ideal was an ever-present, indis- soluble symbiosis between minister and civil servants so that they were almost one person, a less mystical forerunner remaining the closeness once expected between a wise monarch and his trusted counsellors.16 In 1988 a permanent secretary, Sir Brian Cubbon, described his role, mathematically rather than mystically, as ‘the reciprocal’ of the minister.17 The product of any number and its reciprocal equals One.18 The constitutional implications of Haldane were plain. Civil servants had a duty to provide advice—intelligence and thought—or, in more modern words, recommendations between options, based on information and analysis. But the decision on what to do remained the minister’s or Cabinet’s, depending on its importance. To enhance that advice, civil servants must be independent of political party. Occasionally ministers under political pressure might be tempted to cut corners. Their officials’ lesser temptation to do so was reinforced by their having a different motivation from ministers; by their appointment through competitive examination to tenured pensionable careers and by ministers having almost no power over their posting and promotion, so achieving the independence from ministerial influence over appointments which The Federalist had believed vital as between different elements in the constitution. In the 1920s Sir William Beveridge, once a permanent secretary, could say that the relationship between minister and permanent secretary was like that between man and wife, except that the minister did not choose the permanent secretary and could not divorce him.19 As late as the 1960s, the civil service still put every obstacle in the way of moving those who no longer had the minister’s trust. Castle in my time could not get rid of her permanent secretary.20 Though he The Constitution Acquires a Third Element: The Civil Service 23 15 An early discussion of the idea is Shaffer (1973); also ‘Mackenzie and Grove (1957). 16 Interestingly, Bagehot used the same word ‘fusion’, to refer to the ideal relation between exec- utive and legislature that is the antithesis of the separation of powers, Bagehot (1997) 8. An impor- tant difference is between the use of fusion to describe the relations between individuals in parliament and Cabinet where the people are the same but the powers different and here where the people are different but the powers the same. 17 Sir Brian Cubbon, quoted by Hennessy (1989) 508. Sisson (1959) 3, speaks of high-level admin- istrators as ‘nearer being a bit of the minister’s mind’. I am indebted to Neville Johnson of Nuffield College, Oxford and Professor George Jones for this reference. 18 Sir John Garlick suggested this rationalisation. 19 Thomas (1978) 43–45. 20 In practice it worked to her and my advantage, though neither of us expected that. Padmore stopped being an effective policymaker, and for 2 years the lead in policy-making, faut de mieux, fell to Castle and me, much as in the Treasury when after 1997 it was to fall to Gordon Brown and Ed Balls.
- 36. tried, Wilson could not get rid of the Head of the Civil Service. As we shall see, the growing influence of politicians in the appointment and promotions of civil servants, especially after 1997, undermined civil service independence and the influence of the values they were meant to uphold. Legally this relationship was named the Carltona principle.21 Examining the legitimacy of civil servants taking decisions for ministers in 1943, the court upheld it.22 Ministers could not in law delegate their responsibilities, but the same thought underlay Haldane’s notion and Cubbon’s expression of it more than sixty years later: ministers and their civil servants were, if not one legal person, then an organic unity for decision-making purposes. The presumption was that civil servants were so close to ministers and knew their minds so well that they would take the same decisions ministers would take, given the law and the substance of government policy on the matter.23 Reciprocally, ministers would not take a decision without their officials’ advice and therefore without heeding constraints imposed by the law, government policy and the principles of administrative law (see below chapter 3). EXPERIENCE OF THE RELATIONSHIP There were many signs of close partnership in the 1960s. Appointed special adviser and chief economist with deputy secretary status in 1966,24 I was told that my minister was surrounded by a close palisade of senior civil servants, usu- ally under-secretaries; each watching over her interests on a given policy front; noting daily occurrences and media reports; monitoring all interest groups and their views; watching the opposition, updating the comprehensive files; and advising the minister whenever called to do so.25 The ring round Barbara Castle was hermetic. As a temporary, I could not be part of that ring because I could not be responsible for anything except my own advice and for the advice of those working for me. Though a few under-secretaries were eccentric and one or two not industrious, they were impressive: men, and the occasional woman, of weight and intelligence—which some were at pains to veil—rapid and agile with the written word, not easily moved to enthusiasm, mostly methodical, some, but far from all, not as quantitative—or as responsive to economics and the other social sciences—as a young economist would have wished, shrewd at spotting dangers for their ministers and themselves, above all able to deal on equal terms with senior representatives of the interest groups, with whom relations were a principal part of their job. Many were novelists manqué in that 24 Experience of the Relationship 21 See Daintith and Page (1999) 40–41; also Wade and Forsyth (1994) 358–59; Freedland (1994) and (1995); Oliver (2003) 207–8. 22 Several judicial decisions reinforced fusion, Daintith and Page (1999) 40–41. 23 Dale (1941) 120–25; Munro (1952); Brown and Steel (1979) 129. 24 Though because of my youth with the pay of an under-secretary. 25 By Sir John Moore, then Principal Establishment Officer at the Ministry of Transport, later second secretary in the Civil Service Department.
- 37. they pondered with fascination the characters of those with whom they had to deal, analysing their professional strengths and weaknesses, usually in carefully guarded language to which one had to learn the code. Judgement was the most admired quality. It meant a strong appreciation of the realities of a situation: what could be done and what not. Among those realities were the people who had to be persuaded in nationalised industries, local government or elsewhere— the Establishment indeed—to do what a minister wanted. Between them they had massive experience, not only of everyday occurrences, but some would have been involved in rarer events: how to deal with a major rail accident, a strike, the need to get rid of the chairman of a public body who could not be sacked. There were also folk memories of how bye-gone ministers and officials had handled unexpected events, capable of substantiation in the files. Between them they possessed what a Cabinet secretary, Burke Trend—himself a master of the written word, able to write a complete White Paper at a sitting without alteration—was to refer to as ‘the departmental store of wisdom.’ Civil servants were almost always present when ministers met to do business and when ministers met outsiders officially. They listened into ministerial telephone calls and accompanied ministers to take a note at outside meetings, afterwards debriefing those who needed to know. A practical reason for these practices was that in a long, busy day, it is not always easy to remember who said what to whom and what ministers wanted done. (As the Ecclestone and second Mandelson resignation episodes, and the Hutton and Butler Inquiries, later showed, there are always people ready to put an unattractive gloss on a conversation which needs a note written at the time to refute it robustly.) The private office controlled a minister’s diary and expected—with discretion—to know where a minister was and how contactable at any time. (Robin Cook’s falling out with Ann Bullen showed what can happen when a minister feels unable to be frank with his diary secretary about private engagements.26 ) I remember a bizarre instance. Knowing that, if he called Barbara Castle directly, her private office would overhear him, Tommy Balogh, then Wilson’s policy adviser, called me, saying that he wanted to meet her and the other trans- port ministers urgently on a matter he could not discuss over the phone. I arranged it with some difficulty, not wanting to be overheard. So Barbara Castle, Stephen Swingler, John Morris and I met him in a borrowed room in the House, realising the department would know if we met in one of their rooms. The phone rang. It was her private office, ostensibly to tell her of a diary change, but really, we knew, to let us know we could not escape their vigilance. Barbara then turned to Tommy, who had not only forgotten what he wanted to say, but thought she had wanted the meeting, not he. Inevitably approached by all sorts of people in their political and social lives, ministers obeyed the precept that whenever an approach became serious, they would ask for a letter to be sent to them at their department, so the request could The Constitution Acquires a Third Element: The Civil Service 25 26 N Jones (1999) 197–8.
- 38. be processed within the official machine. Ministers met outsiders in the House of Commons, their constituencies and their social life to discuss issues, even reaching conclusions, which, however, had to be translated by officials onto paper with supporting argument to get through the Cabinet system, or to be a basis for departmental action. Ministers could not reach a decision in private, with each other or someone else. Neither could an official. Ministers’ private secretaries were judged by the quality of the relationship between the minister and the department. They used their discretion over ministers’ private lives, but were expected to inform the permanent secretary of everything important they were up to in their official life, not unreasonable given the need to brief and debrief them for any contact. A private secretary to a junior minister, Stephen Swingler, who did not inform his permanent secretary about some negotiations his minister had with another minister—which the minister had expressly asked him to keep quiet about—was carpeted.27 The civil service would go over all written and other media communications, including speeches—except party political ones and even then officials might check facts—to avoid mistakes of fact and law or departures from government policy. They would generally prepare first drafts of all papers and letters. Churchill’s civil servants in No 10 acquired the skill of writing Churchillian prose, an example followed by others close to ministers—Roy Jenkins and Dennis Healey required their private secretary on occasion to imitate their prose styles—if they could write well and the minister had a recognisable style.28 Underpinning their knowledge of their job was an exhaustive, but marvel- lous, filing system. Everything was written down. Almost every meeting discussed a paper, which was revised as it rose through the hierarchy towards the minister or was sent down again by her. (There was no problem of identify- ing who suggested, and who authorised, every significant change to a paper, as there was to the 2002 Iraq dossier.) Every meeting, every lunch, was minuted. When appointed, I was given a full-time filing clerk to set up and maintain all the economists’ and mathematicians’ files, which Bert Green did very well.29 The importance of files meant a determination to get them into order before someone left their post. The highest praise the best under-secretary in the department received from his successor was that the files he left behind when promoted, reinforced by a few retrospective notes for the record, made clear not only how every issue had been handled, but also the strengths and weaknesses of the courses of action for other issues likely to arise.30 The best files inherited were contingency planning, if not meant as such. Moreover, their existence facilitated the rotation of officials from one post to another, usually every three 26 Experience of the Relationship 27 Personal knowledge. 28 Colville (1987) i, 190–91; information from Sir John Chilcot when Jenkins’ secretary and Sir Nicholas Monck who had been Healey’s. 29 His job was to avoid duplication and filing unimportant drafting changes. 30 C P Scott-Malden as recalled in private conversation by his successor, Sir Peter Lazarus, as rail- ways under secretary, later permanent secretary.
- 39. years or so, which was to get fresh minds in post every so often. It also served to discourage the possibility of too close or even improper relations building up with outside interests. No nonsense about competing for posts. Promotions were aimed at getting the right person in post and ensuring that senior officers obtained the right mix of experience to prepare and test them for top positions.31 A huge amount of time in departments and at the centre of the civil service was spent deciding who should go where in their career development.32 Departmental high-fliers were systematically tested by their being posted to the Treasury, No 10 or Cabinet Office as well as into the depths of a large executive activity. The process of deliberation, especially in the home policy departments, was often not as quantitative, economic or otherwise analytical as it could have been. Nevertheless it far exceeded the minimum evidence judicial review required. Its model form was rather that of a much more mature, though more worked-up and thorough, essay that an undergraduate classicist or historian might write, setting out the pros and cons of a thesis before drawing conclusions for his tutor. Challenged and tested at every stage as it moved up the hierarchy, this process of serial tutorials up the hierarchy was appropriate for many pur- poses, e.g., for much casework, but not for all. Often slow and cumbersome, it sometimes seemed to slow down a proposed change deliberately; or delay it to ensure there was enough pressure for it. Civil servants could use their contacts in other departments to brief other ministers against policies they did not like as well as policies other ministers genuinely did not want. Even so, in most cases it enabled ministers to reach an informed decision on the basis of the evidence provided. Moreover, ministers seldom wanted an intellectual solution to politi- cal problems, rather one which took into account public opinion and pressure group interests and which they could defend politically. If they pressed for an intellectual approach, as with local authority grants, they got it.33 POWER WITHIN THE EXECUTIVE But one must not be starry-eyed about the relationship. As Burke Trend had expressed it in the early 1970s, it remained broadly true that ‘the machine wins every time’.34 Too great civil service power had led to departments securing an unhealthy monopoly of advice to ministers. The ‘office view’ on a matter could be difficult to challenge. Until the mid-1960s the permanent secretary often had the departmental hierarchy under his control. Attlee referred to the ‘autocracy’ The Constitution Acquires a Third Element: The Civil Service 27 31 Though a special adviser, my deputy secretary status meant I sat on the departmental man- agement board where I had plenty of opportunity to see this going on. 32 Information from Lord Croham who was Head of the Civil Service. 33 In this case it was to protect ministers from the charge of being political in the allocation of funds between local authorities. 34 Hennessy (1989) 537.
- 40. at the Post Office when he was postmaster-general.35 Macmillan’s permanent secretary told him it was unconstitutional for him to consult anyone else in the department, as Roy Jenkins was also told at the Home Office, wondering at the contradiction between a permanent secretary who was personally liberal, but regarded it as wrong for any opinion to reach the minister which he had not approved.36 Crossman spoke of the ‘secret discussions’ among civil servants before submissions came to him which might have been more accurately described as meetings to prepare submissions for him.37 He found his perma- nent secretary insistent that she comment on what went to ministers.38 Submissions to him, with which she disagreed, went forward, but with such pungent comments that subordinates were wary of crossing her views, espe- cially given that she was generally right.39 Like many other departments, the 1960s saw Transport show greater tolerance: different ideas could be put to ministers by civil servants, if first circulated on paper. If suggestions took account of criticisms, and the views of relevant interests, they would reach min- isters. By the end of the 1960s, Douglas Allen, as Treasury permanent secretary, allowed papers to go straight to ministers, provided they were always copied to him so that he could intervene. Despite more voices reaching ministers in the 1960s and 1970s, the balance of power stayed with the machine. But ministers and officials were seldom at loggerheads. Working relations were usually good, though, even at its best, the decision-making process could seem opaque to ministers sitting on top of it. A Jenkins, Castle, or Healey, Heseltine, Ridley or Lawson could almost always get their way. But many others often stood up to their officials. I recall the London Motorway Box in l969. By then Dick Marsh was minister and my own position was weaker, not helped by his return to a more traditional view that he did not want a choice put to him, rather a single recommendation, which he would decide if he could handle politically. Departmental stubbornness in favour of the Box was grounded, from officials’ standpoint not unreasonably, in the fact that a long and expensive inquiry process—a court-like rather than economic process—favoured it. Yet it seemed plain to us economists that the economic and many traffic-engineering arguments were against it. The arguments sup- ported Marsh’s own view.40 The box was dropped. To overcome the office view, even the strongest ministers benefited from: • a team of junior ministers who—far from common given the haphazard nature of many ministerial appointments—worked constructively together. 28 Power Within the Executive 35 K Harris (1982) 90, 590. 36 R Jenkins (1991) 181–84. Jenkins’ view of Home Office elaborated in Headey (1974) 210–20 37 Crossman (1975) 26–31. 38 Crossman (1975) 51–55, 65–66. 39 Information from Sir Geoffrey Chipperfield, then at MHLG. 40 It is relevant that as a London MP Dick Marsh was dead against it before he received our argu- ments; but still the strength of opinion within the department that the conclusion of an independent inquiry should not be overturned was such that it was the next government that finally killed the proposal off.
- 41. Our team at Transport did. Barbara’s subsequent team—for her disastrous Industrial Relations bill—did not; • special advisers. In those days when they were mostly technical advisers, their main strengths were that they could track down and challenge the evidence, on which advice to her was based, as well as improving both access to outside analysis and advice and that done internally. Special advisers improved these processes provided they actively engaged with civil servants in developing practical policies, or alternatively confined themselves to speech-writing and constituency relations. ADAPTABILITY OF THE RELATIONSHIP But for virtually all ministers the advantages of partnership far out-weighed the disadvantages. Its flexibility allowed the machine to adapt to ministers’ differ- ent styles and appetites for business. They could deal with the idiosyncrasies of Ernest Marples, whose working day lasted from 4am to lunch-time, after which he slept before going down to the Commons. He hardly entered his department, insisting meetings took place at his home—the small compensation being a glass of Chateau Marples—and of Duncan Sandys, who would not leave a phrase unturned when discussing documents, and worked so thoroughly that he needed a double-shift system in private office to get through no more work than other ministers did. They learnt to know how extensive the advice a minister wanted and how best to present it. There were always voracious readers like Barbara Castle and Margaret Thatcher and those who, like Ernest Bevin and later Michael Heseltine, depended almost wholly on talk with their officials. Some, like Castle demanded they were always given a choice of decisions, though one were rec- ommended. Others wanted a single recommendation to accept or reject, before being given another option. Some still have a lawyer’s ability to master a brief. Others take longer. Some want copious information: Tony Crosland—to whom I was also a special adviser—required a vanload of papers sent to his home for his 1975 Transport Review, as much as if writing a book. Others want sum- maries on one or two sheets of paper. Some are efficient and well organised, some not industrious. Some have a zest for arbitrary decision-making without close attention to the evidence. A few avoid a decision if they can. They vary in what interests them within their departments and in their willingness to delegate to junior ministers. Partnership allowed the civil service to adjust to these differences in ministe- rial styles, priorities and workload. (The most important post an ambitious young civil servant had was as head of the minister’s private office.) It did not try to negate differences in personality but, individually and institutionally, it provided structure, processes and constant sources of advice, which made ministers more effective, more than in other government systems, which also The Constitution Acquires a Third Element: The Civil Service 29
- 42. provided structures, but where the advice was not as bespoke to meet every min- ister’s needs. Writing about politics, in terms of personalities and without regard to structure or process, distorts, but to allow no influence of personality differences on power is mistaken. Much of the dialogue the nation was later to laugh at in Yes, Minister came from the need for usually successful tact in steering ministers around pitfalls.41 Ministers did not realise how much thought went into making them more effective.42 They would never see the detailed notes that accompanied ministers moving department, setting out their preferred ways of doing business, atten- tion span, strengths, foibles, how they could be pleased and how annoyed, preferred times of working and methods of relaxation, family and personal friends to be allowed special access, and so on. (I remember the long note her private secretary, John Gunn, wrote when Barbara Castle left for her new job at Employment and Productivity.) It was the silk on the upholstery of the Rolls Royce service the civil service offered and it appealed to civil servants to be as closely interested in their ministers as much as it did to understand characters in a good novel. STRENGTHS OF THE RELATIONSHIP Civil servants developed a first-rate capability for protecting ministers’ short- term interests, especially when confronted, as always happens, with unexpected events. Particularly, but not only, in Private Office, they could give ministers crucial psychological support at times of stress, because they were trusted, leak- proof and always on the ministers’ side, more than their party supporters in the Commons who might fancy their chances as rivals or be envious. Moreover, there were the discouraging examples of ministers who had rejected their embrace: Neville Chamberlain (and Sir Horace Wilson) in pursuit of appease- ment; Eden over Suez; Tony Benn (and his special advisers) at the Department of Industry; and all too many after 1997. Furthermore, partnership helped ministers, who generally had to learn on the job. That is far from saying that ministers should always do what their civil ser- vants tell them and not listen to other people. John Stuart Mill in his day stressed the importance of local government as a nursery for ministerial talent, still true.43 However, the ‘companionable embrace’ of the civil service was an additional and more important training ground, arguably the most significant contribution of the relationship to democracy.44 The theory and usually the practice were that understandably most ministers had little experience in their 30 Strengths of the Relationship 41 See a discussion on how to handle ministers with Lord Bancroft, dismissed as Head of the Civil Service by Margaret Thatcher, Hennessy (1989) 509. 42 Based on the note I saw written when Barbara Castle went from Transport to DEP. 43 Mill (1910) ch 15. 44 Castle (1984) 35, talked of the ‘administrators’ companionable embrace’.
- 43. backgrounds—even if clever or experienced in other ways—to head large government organisations with a wide and unpredictable spread of difficult decisions and without a common measure like profit to help them. Moreover, as Bagehot noted, ministers seldom go where they have most experience or expertise. Neither in Britain do they stay in any one post for long. To make democracy work, the axiom was that through some experience in their back- ground—as businessman, magistrate, trade union official, schoolmaster or whatever—they could be helped to realise their potential in government. Rather that than government by experts of any kind. Whatever their background, officials preferred strong ministers—able to stand up to their colleagues and to Parliament—rather than weak ones. And it generally worked. At worst, if they stuck to their admirable, probably unadventurous, written brief, they would rarely be humiliated. They could be an actor, even a parrot. More frequently, they would marry their own judge- ment and experience to what the civil service had to offer and produce some- thing better than either could separately. At best, even the greatest and most self-reliant benefited from their help. As a consequence, the civil service came to respect and admire not only the best but also good ministers. Ministers came to trust and rely on these civil servants, especially those close to them, though they would never forget, if they were wise, that the minister’s interest and that of the departmental machine must often diverge. As a consequence of these strengths, but particularly the last, ministers were able to perform far more functions—except those concerned with politics, party and constituency— indeed do more things at once, and to appear wiser, more knowledgeable than they could have done on their own. Furthermore the processes underlying the decisions they took, meant the evidence on which they were based, the consul- tative processes gone through, the reasons for the actual decisions taken, could be revealed voluntarily or if Parliament demanded it. Despite the fact that over time ministers’ responsibilities grew, yet with few exceptions, and even though notoriously many ministerial careers end in tears, their performance was enhanced by the partnership. A rewarding contrast is between Roy Jenkins among the best as Home Secretary and Chancellor, where reasoned but politi- cally astute decision-making was required, and his comparative failure as president of the European Commission where face-to-face horse-trading was de rigueur. CONCLUSION The efficient secret of Haldane partnership enabled ministers to do more work and appear more on top of their job than in other government systems, though nowhere else were they so dependent on their officials.45 The gradual, and then The Constitution Acquires a Third Element: The Civil Service 31 45 Campbell and Wilson (1995) 19–20.
- 44. more precipitate decay of this relationship after 1979, meant ministers’ and officials’ ability to get through as much business with thoroughness and effec- tiveness was much reduced. After 1997 it was not unreasonable to say that in practice, if not in law, special advisers had replaced civil servants as ministers’ alter egos.46 As we shall see, it had painful consequences for both the efficiency of government but also for the values by which it operated. 32 Conclusion 46 Oliver (2003) 238.
- 45. 3 Decision-Making: The Exercise of Ministerial Power . . . several things should be left to the discretion of him that hath executive power. For the legislators not being able to foresee and provide by laws for all that may be useful to the community, the executor of the laws, having the power in his hands . . . has . . . a right to make use of it for the good of the society. John Locke (1684)1 M OST OF WHAT ministers, or civil servants on their behalf, do, is taking decisions within the law and bounds set by government policy. The kinds of decision made varied between departments, but most secretaries of state themselves: make executive decisions generated by departmental activities; allocate and authorise expenditure; decide how to respond to serious criticisms in Parliament, as by setting up an inquiry or other expedient; decide how to handle business with colleagues, Parliament and the press or unexpected emergencies like dealing with a strike; and make public appointments. Decision-making was and remains the most evident expression of ministerial power, far more than lawmaking, something often forgotten by those who have recently argued for the replacement of our political by a legal constitution.2 Some decisions were urgent, some needed a rapid response, while some, involv- ing wide and slow consultation might proceed through green and white papers: not only major legislation, but a Defence proposal to buy equipment from abroad or DHSS needing to deal with the suddenly perceived dangers of lead in petrol (see below chapter 4). THE PRACTICE OF DECISION-MAKING Ministers were involved in most decisions until the First World War, when comparatively few were made; but, especially during the two world wars, their 1 Locke [1690] (1924) 199. Locke attributed that right to ‘the Common Law of Nature’. 2 Oliver (2003).
- 46. number increased and civil servants progressively came to take more.3 Ministers’ interest in taking decisions grew in the 1960s; but the number to be made grew faster, so that civil servants made increasing numbers of the less important decisions for them. Civil servants maintained that formal and infor- mal signals from ministers, indicating policy changes, were usually easily picked up by civil servants without much discussion and reflected in their decision- making.4 Even so, the law, the convention of ministerial responsibility and, more recently, media pressures gave ministers many more decisions to take than other nations’ ministers or a private sector CEO. Reasoned decision-making drew on many ministers’ common experience. Many were lawyers, but more able to rise higher in their profession and remain MPs than now.5 Many had been magistrates.6 Many MPs—Labour as well as Conservative—came through local government as mayors and aldermen in days when they were automatically magistrates. Some had similar experience in the colonies. Indeed, sitting in judgement was part of the professional activity of many occupations from colonial administrator or military officer, to trade union official, schoolmaster and even school prefect. Weighing evidence, oral and written, was a familiar activity. Indeed the standard form of the traditional civil service minute identified the issue, set out the relevant evidence and law, put the main options, and then the main advantages and disadvantages of each before making a recommendation. As long ago as 1940 Oliver Lyttelton, a rare businessman who was also a successful minister, remarked on civil servants’ tendency to assume ministers knew nothing about a subject; but their defence would have remained that, as in a court of law, ministers needed to review relevant evidence before making up their minds.7 Some decisions were based on recommendations made by officials with quasi-judicial authority, like inspectors and regulatory authorities, or by public inquiries or the Monopolies Commission which operated under court-like procedures. As with the Motorway Box (see above chapter 2) a minister found it harder to overturn their recommendations: he would have to give reasoned arguments in public why he should do so. Though the load varied between departments, ministers might find ten or more significant decisions a day in their evening and weekend boxes, or to be discussed at meetings sandwiched between other activities. How carefully min- isters scrutinised the requests for decisions which filled their evening and week- 34 The Practice of Decision-Making 3 For the growth in the decisions ministers had to make in the First World War, see J Harris (1997) 198. Oliver Lyttelton, businessman and politician, could say at the end of the Second World War that the occupation of a minister had turned from that of a policymaker to an administrator in his lifetime, Chandos, (1962) 146. 4 Private information. 5 This point came home to Sir Henry Brooke, as head of the Law Commission, when he read the Commons Reports on the 1965 Law Commission debates when many of the contributions of the lawyers who took part were excellent. 6 Foster and Plowden (1996) 201–7. In 1895 20%; in 1992 only 4% of ministers had been JPs. 7 Chandos (1962) 202.
- 47. end boxes might be hard to tell. A tick and their initials were often all that was needed. Officials took dozens more in the secretary of state’s name, but he or she was accountable for all to Parliament. Making decisions was occasionally agonising, often enjoyable, usually interesting, but, even when routine, proof of the power which had attracted most into politics. Some could be as important as legislation. Many might interest Parliament or the press but, even if not, were practice for greater decisions. Many clustered round the institutions and public bodies a minister had to handle habitually. They were ways of getting to know, and learning how to persuade, people in nationalised industries and elsewhere who frequently had different backgrounds, aspirations and motivations from their own. If good working relationships were to be maintained, the handling of decisions was as important as the decision itself. A spin-doctor can often gloss as a triumph a decision which has soured personal relations, even irreparably. CONSISTENCY WITH THE LAW Announcing a decision, ministers and civil servants had once written formal letters to chairmen of public bodies, MPs, members of the general public or anyone else, tending to start, ‘I am directed by the Minister under . . .’, followed by a reference to the statutory power. Towards the end of the 1950s they were usually replaced by informal, less bureaucratic letters which no longer referred to a statute or a regulation.8 However, if there were doubts whether the minis- ter had the necessary powers, departmental lawyers were consulted. That min- isters must operate only within the law, remained well understood.9 After a fire at a steel plant, Tony Benn telephoned the British Steel Corporation from his car, ordering it to be closed down for two days, only for officials to remind him that for him to do so was beyond his legal powers. If the issue seemed important enough, such powers might be sought in new regulations or a bill.10 As a mem- ber of a public body in the 1990s, it was a shock to receive a letter from a departmental minister demanding that many millions of our budget should be spent on a large project with a negative return, but of high interest to his con- stituency. Had civil service advice that this request exceeded his powers, as it did, been ignored? Or was the advice no longer there? Then and later ministers were more often to insist on such actions and get away with them, though they had not the legal powers. Decision-Making: The Exercise of Ministerial Power 35 8 I was told under the influence of Ernest Gowers’ campaign for plain English. 9 Craig (1994) 4–7; Jowell in Jowell and Oliver (1989) 3–23. 10 Until the 1933 Donoughmore Committee there were doubts if secondary legislation was con- sistent with the Rule of Law, Jowell in Jowell and Oliver (1989) 6.
- 48. CONVENTIONS: CONSISTENCY WITH DEPARTMENTAL POLICY Standard practice was that, before a minister took a decision, he would receive a file with the case particulars, the relevant law, regulations, government policy and similar decisions previously made. Benn complained he was expected to accept ‘recommendations’ for decisions put to him. I doubt it, but if he disagreed with a recommendation based on precedent, he should have gone through the evidence and arguments put to him, on which the recommended decision was based, showing why he disagreed and on the basis of what evidence and arguments, then giving reasons for his preferred decision. Moreover, for fairness and consistency, such a change in departmental policy sets a precedent for subsequent decisions, whether taken by ministers or officials. In that sense ministers could overturn a ‘recommendation’ by spelling out a new policy in such terms, but could not do it by being in any other sense ‘political’ or arbi- trary.11 As late as the 1970s a junior minister at the Home Office, who habitu- ally took arbitrary and inconsistent decisions, was moved when officials pointed this out to the secretary of state.12 The exception proves the rule. When Jenkins was Home Secretary, Jersey still had capital punishment. A recommendation for the death penalty—consistent with the law there and with every Jersey precedent in its use—came for his approval. Believing it would affront British public opinion, he turned it down.13 CONVENTIONS: CONSISTENCY WITH GOVERNMENT POLICY However, where a departmental policy had been agreed by Cabinet, even by one of a different party, and became government policy, or touched other depart- ments’ interests, ministers had to be ready to argue for their proposed policy changes before a Cabinet committee or even at Cabinet. One can see Benn’s per- manent secretary, Sir Anthony Part, endlessly trying to persuade him to take an issue to Cabinet and abide by its decision, whatever the manifesto or Labour’s National Executive Committee said.14 Or in Parliament. A decision justified in Parliament had authority as much as in a court of law, an especially valuable validation when the law did not provide a precise answer, as over a difficult issue of war or peace, or in reviewing the sentence of or pardoning a criminal, or of justifying a controversial planning decision. To give an extreme example, before incorporation of the European 36 Conventions: Consistency with Departmental Policy 11 Benn (1990) 187, 210–12. 12 Private information. 13 Remembered by Sir John Chilcot. It was the last such recommendation from Jersey. 14 As Crossman had attempted strenuously but not as successfully, not seeing why Cabinet’s judgement should always be preferred to his own, Wilson dealt with him more rapidly, Howard (1990) 265–66.
- 49. Convention on Human Rights whether a Myra Hindley should be kept in prison was considered better decided not by an official under rules or a judge, but by a Cabinet minister responding to public opinion and able to defend his decision in the Commons. His was a more authoritative expression than the courts of how public opinion wanted administrative discretion used.15 A good performance on such an occasion ranked high in all quarters of the House, helping prove the quality of a good minister. It was a way of earning promotion.16 Since the department’s reputation was raised, it had a positive effect on the morale of the civil service and the respect in which it held a minister. NATURAL JUSTICE Though I do not recall hearing the British lawyers’ phrase, natural justice, used, I am assured that it was well known to civil servants who regarded it as a guide to proper administrative action by them and by ministers, not only a set of rules for the courts.17 It implied being systematically fair.18 It generally required that the views of interested parties were considered, and that any other relevant evi- dence was sought and weighed, before any decision.19 How these principles were interpreted depended on the significance of the decision, work pressures and the ability to secure ministerial time. It underpinned the convention that if one party to an issue could see a minister, fairness required that any other party of substance should see the minister as well. If the minister were too busy to see all, then an official should see all.20 As a decision travelled up the hierarchy towards the permanent secretary and the minister, an official might stop it, noting either there was ample precedent for it or that it was sufficiently like a decision the minister had already taken not to burden her with it, since her or his consistency made plain what the answer would be. Economising on busy ministers’ time was an important considera- Decision-Making: The Exercise of Ministerial Power 37 15 Subsequently the courts, using the European Convention on Human Rights, have ruled against ministers. 16 Kavanagh (1990) and Riddell (1993) 272. 17 By two permanent secretaries, Sir John Garlick and Sir Peter Baldwin. Ingrained in the system was that ministers’ and officials’ decisions must be consistent, both with each other and government policy, otherwise described as not being ‘arbitrary’, ‘irrational’ or ‘unreasonable’; e.g., Wade and Forsyth (1994) 399–402 (legal, that is not ultra vires, and fair); Craig (1994) 281–334; Wade and Forsyth (1994) 463–70 (the equivalent to what the USA knows as due process); Breyer (1982) 346–50. The Sainsbury criteria in 1992, and the Better Regulation unit criteria in 1998, for good regulation were similar, Daintith and Page (1999) 277–78. Administrative law regards legality, rationality and propriety, otherwise fairness, as required of ministerial and official decision-making. They are dif- ferent words for the same qualities. For this I am indebted to Professor Loughlin. 18 An account of ‘fairness’ as it appeared to a Cabinet secretary, can be found in Hunt (1993) 120–21. 19 However just whose views should be considered in making a decision could be a difficulty, just as rights of representation are often difficult for lawyers. Baldwin (1995) 36. 20 Cf Lord Diplock, ‘Exposition of the Process of the Principles of Judicial Review’, in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 408, quoted in Wade and Forsyth (1994) 1012–14.
- 50. tion, that was never given sufficient weight when their decisions were reviewed in the courts. The courts always assumed that ministers had all the time in the world for their decisions. But except in a few cases, there was nothing like the time for the length and elaborateness of the simplest court procedures. Besides, much of the relevant evidence was on file. THE PUBLIC INTEREST Another important convention was that any ministerial decision must be in the public interest, an apparently slippery concept often found in statutes and administrative law, and frequently believed to be so ambiguous as to be meaningless.21 To the best of my knowledge, it was not defined in statute or rules, but if so, like natural justice, it was kept in the bottom drawer, not on dis- play. Yet ministers and civil servants gave it a meaning.22 As best I can judge, it had three elements: • Ministers could not give electoral or party political—let alone their own polit- ical or financial—advantage as a reason for a decision, certainly not in Cabinet or before Parliament, but also not in private with their officials. At the same time officials were perfectly aware ministers must face electoral and other political consequences of different courses of action. The convention was frequently observed by a minister asking for officials to recommend the decision they believed right or in the public interest, and let him see if he or she could live with it politically. If so, they had provided a public interest recommendation he or she could accept; • In parallel it was usual to consider the ‘right’ decision and afterwards sepa- rately, but before it was firmed up, the question of how to put it over publicly, rather than attempt both simultaneously or address the second question first as became standard at the end of the 20th century; • Attempts might be made to modify a decision or proposal if that might gain a wider consensus for it without undermining its original objectives. As recently as 2002 on retiring as Head of the Civil Service, Sir Richard Wilson repeated the view that government should be driven by public interest consider- ations: It is however fundamental to the working of our constitution that governments should use the resources entrusted to them, including the Civil Service, for the benefit of the country as a whole and not for the benefit of their political party; and that opposition parties should feel confident that this position is being respected.23 38 The Public Interest 21 The notion that public offices are to be used in the public interest and not in the interest of the office-holder comes from common law, Oliver (2003) 97, though interestingly she uses the concept but does not further define it. 22 The very existence of an impartial civil service pre-supposed a public interest as distinct from private interests. Not officials but ministers were meant to define it, Marquand (2004) 107. 23 R Wilson (2002).
- 51. FORMAL CRITERIA Though it did not persist long enough to become a convention, another 1960s development made it easier to separate out the political element in ministers’ decisions, until gradually jettisoned from the 1980s, precipitately after 1997: the publication of formal, usually economic, criteria was introduced, both to get better, because more logical and better-evidenced, decisions, and to help ensure consistency between them. When we introduced systematic cost-benefit analy- sis into the appraisal of road schemes shortly after the Humber Bridge,24 the main opposition from civil servants was from fear it was a Trojan horse to enable politicians to get inside the process and select individual schemes on purely political grounds. Preferable for them in that era would have been a signal of a policy change from ministers, for example, that greater weight should be given to regional or safety or environmental considerations in developing and selecting road schemes, the exact choice being left to them.25 Logically they were wrong since formal investment criteria could be as much a protection against the corrupt or purely political decision making they feared. But historically they were to be proved right. 26 THE PLACE OF POLITICS These conventions were a vital means of avoiding politicisation of the civil service, since officials did not have to advocate political advantage when dis- cussing an issue with ministers. What was in it for ministers? Most probably accepted it as right. Many ministers took decisions they believed right despite their difficult politics. Marples pressed on with parking meters despite their great unpopularity. One was thrown through his front window. Crosland negotiated an Icelandic fish agreement believing it to be generally right though against the interest of his constituency, Grimsby. All believed it was for minis- ters to supply the politics. But they had better be able to defend their decisions in those terms in Parliament or to the media (let alone, as scarcely happened, if challenged in the courts). Otherwise the opposition and informed opinion would be howling for their blood. Moreover, there were usually enough MPs on Decision-Making: The Exercise of Ministerial Power 39 24 Also for rail and other public transport schemes. There had been rudimentary CBA for roads. 25 The era of cost-benefit analysis—from the late 1960s and 1980s—was a protection against min- isters being able to influence the choice of road schemes and alignments on political grounds. In recent years the most obvious exercise of resurgent political power has been the removal of politi- cally contentious road schemes from the programme, whatever their public benefits. 26 A still more sophisticated technique to deter political decision-making and keep it in the pub- lic interest was the use of regression analysis as developed in the 1970s to allocate funds between local authorities. One observed, then and since, ministers using the limited freedom they had to choose between equations.
- 52. their own side, disliking a blatant, though admiring a concealed, political manoeuvre, to discomfort a minister, if too overtly political. The game, if it were a game, was for a minister to take a decision which was a political winner, while being able to justify it as in the public interest. Ministers in many circumstances could be adroit enough to find a genuinely defensible reason against what they did not want to do for political reasons. The confusions that can arise over ministers taking ‘political’ or policy decisions unilaterally are amply illustrated in Benn’s diaries, particularly those for 1974–6, where here, as in other aspects of his political style, though not content, he was a forerunner of the Thatcher era. One strand is shown by his determina- tion not to cancel Concorde, although most of Whitehall, and—instinctively or rationally—many ministers, wanted to cancel it because of its rapidly increas- ing costs.27 Benn’s political reason was patently that it would be a local political disaster for him in Bristol where it was made and he was an MP; but he could use neither national nor local electoral advantage as an overt reason for not cancelling it and could have been subject to parliamentary obloquy or judi- cial review if he had. His task was to find a reason in the public interest against cancellation which Cabinet would agree was defensible. But earlier ministers had tied up contractual arrangements between governments and manufacturers to make cancellation impossible, except at incredible cost.28 Thus he found, as ministers before him had frequently done, a reasoned argument which could stand up in Parliament. There were rare exceptions—perhaps portents for the future—where no other reason than electoral advantage could be given. The decision to build the Humber Bridge was tantamount to a manifesto commitment, made before the 1966 election—a category of promises which once did not have the legitimacy it later acquired—despite its non-existent economic return. It over-rode the nor- mal decision-making processes within the Ministry of Transport. Not entirely without precedent—old hands blenched at the memory of the premature approval of the Hunstanton-Godmanstow by-pass to help a bye-election—it was still a rarity causing uproar in Whitehall, going all the way to Cabinet, and becoming highly visible outside it. It became a precedent for some years not to be lightly repeated by ministers, particularly as the empty bridge long remained a white elephant.29 There were ministers adroit enough to hoodwink Parliament, but the fear of not doing so successfully was a powerful discipline on the boldest and least prin- cipled. However, sometimes politics needs what the law can never provide: an 40 The Place of Politics 27 Benn (1990) 116, 125, 159–60. 28 Roy Jenkins had found it unbreakable in 1964 and Heath again in 1970. Julian Amery as min- ister of Aviation had so tied the contract deliberately to stop the French breaking the contract, Howe (1994) 56. 29 Embarrassing to us because I was asked to join in objecting to what Barbara Castle had done over the Humber Bridge, as logically I should have done, given our crusade to extend the use of cost- benefit analysis.
- 53. opaque decision because there is not enough political consensus to support a clear-cut one. Such endeavours require the wiliest of politicians if they are to be constructive. Outstanding was Lloyd George. His masterpiece was the Anglo- Irish Treaty of 1921 by which he ended for 50 years endless disruptive argument over Ireland’s future.30 He did it by a series of subterfuges, ambiguities and working on the prejudices and fears of his fellow negotiators from Ireland and Ulster so that they were cajoled into a form of words that did the trick without the possibility of re-opening. But, given parliamentary and civil service vigil- ance, such tricks require a master-hand. ARM-TWISTING But could not ministers just instruct someone to do something? In principle they could within their departments, but having to give a reason for doing so, defen- sible before Parliament if required, was a powerful protection against sheer political interference. As will appear in chapters 4 and 11, the autonomy of many public bodies made even reasoned instruction virtually impossible until the 1980s. With nationalised industries and bodies in receipt of public expendi- ture, ministers could sometimes use arm-twisting to get the actions they wanted and for which they did not have the formal powers. Arm-twisting might either be silent, as it generally was, or blatant. I recall a silent example as a member of the Post Office board in the late 1970s. We presented the board’s corporate plan to the secretary of state, Eric Varley. It requested funds to invest in infrastructure needed to meet the beginning of a boom in demand for telephony. The minister commented on it, then switched into a discussion of threatened closures of sub-post offices and poor local service in his constituency, allegedly because of understaffing. The Post Office got the funds it then believed it required, though less than were needed to meet the actual growth in demand, later to be a prime motive for privatisation. But Varley’s own concerns were met without anything as crude as a bargain. One had seen such arm twisting going on in a minor way all the time with the nation- alised industries and other public bodies: that which cost them little relative to their budgets (even in deficit) could be helpful to ministers as such or as constituency MPs.31 Cruder arm-twisting took place on the rare occasions when ministers met such people as nationalised industries’ chairmen without others present. In such ways ministers could extend their influence beyond their statutory powers, but not much. The independence and robustness of boards and board chairmen— and the jealousy of Cabinet colleagues—limited the effectiveness of arm- twisting and kept it cheap. It was reinforced by still detailed Treasury control Decision-Making: The Exercise of Ministerial Power 41 30 McLean (2001) ch 7. 31 Foster (1971) 99–118.
- 54. over expenditure in days when ministers had almost no freedom to go outside the detailed allocations they had negotiated with Treasury, but had to go to it to authorise virtually anything different, another Gladstonian legacy. Authorisation required a publicly defensible, that is a public interest, reason. In other cases where it has been felt that ministers were especially likely to be tempted to make political decisions—like rail branch closures, planning permissions and grants to local authorities—more or less elaborate procedures grew up to prevent it. Though, as indeed with rail closures, cumbersome procedures could be a political manoeuvre to deter some decisions. ABSENCE OF SERIOUS CORRUPTION IN THE BRITISH EXECUTIVE Partnership with their officials—much better than the courts or departmental ethics officers32 —protected both against the infiltration of corrupt decision- making, if protection were needed. British ministers have long not been corrupt and remain so. But from the 17th to the early 19th centuries corruption was as commonplace as in many nations one now judges corrupt. Lord Chancellor Westbury in 1865 was the last minister to resign because of the corrupt use of min- isterial power: in his case, nepotism.33 While a few corrupt appointments may seem no more than petty corruption, a system will be corrupt which substantially allows ministers to make the appointments they please, an issue which began again to cast a shadow over some appointments around the end of the 20th cen- tury. Westbury marked a turning point because what he had done for a few rela- tions was no more than had been standard among ministers some years earlier. It would not have led to his resignation then, had it not been for the hypocrisy that he had also been a great judicial reformer purging the corruption of the courts, and he was also unpopular because of his habitual sarcastic invective. In 1892 Gladstone told his Cabinet to drop their public company director- ships. Mundella still had to resign as President of the Board of Trade in 1893 when his department investigated a firm in which he had been a non-executive board member until 1892, though no one suggested he had behaved improperly, only carelessly.34 Even so, Salisbury relaxed the policy in 1900, so that half his Cabinet had company directorships.35 It was reintroduced and maintained after 1906, when the incoming Liberal Prime Minister, Campbell-Bannerman, asked his new Cabinet to reveal all their directorships, and in most cases give them up, because he did not want his front bench to be known as a ‘sty for guinea- pigs’.36 Some such conflicts of interest remained. Lord Beaverbrook was a Cabinet minister in both world wars while personally dominating the contents 42 Absence of Serious Corruption in the British Executive 32 Thompson (1995). 33 Molesworth (1886) iii, 258–61; Vincent (1978) 208. 34 Armytage (1951) 300–05. 35 Searle (1987) 44; also Roberts (2000) 540. 36 J Wilson (1973) 496; Searle (1987) 3.
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- 56. real elements of life, may look with pity on his former self, yet gather out of the experience that had small value, for the most part, here and there a jewel of price. And the wise, becoming wiser, will feel preparation made for the greater existence that lies beyond. Moses accompanied his brother to the mountain top. By his hands, with all considerateness, the priestly robes were taken from Aaron's shoulders and put on Eleazar. The true friend he had all along relied upon was with the dying man at the last, and closed his eyes. In this there was a palliation of the decree under which it would have been terrible to suffer alone; yet in the end the loneliness of death had to be felt. We know a Friend who passed through death for us, and made a way into the higher life, but still we have our dread of the solitude. How much heavier must it have weighed when no clear hope of immortality shone upon the hill. The vastness of nature was around the dying priest of Israel, his face was turned to the skies. But the thrill of Divine love we find in the touch of Christ did not reassure him. "These all ... received not the promise, God having provided some better thing concerning us, that apart from us they should not be made perfect." Eleazar followed Aaron and took up the work of the priesthood, not less ably, let us believe, yet not precisely with the same spirit, the same endowments. And indeed to have one in all respects like Aaron would not have served. The new generation, in new circumstances, needs a new minister. Office remains; but, as history moves on, it means always something different. When the hour comes that requires a clear step to be taken away from old notions and traditions of duty, neither he who holds the office nor those to whom he has ministered should complain or doubt. It is not good that one should cling to work merely because he has served well and may still seem able to serve; often it is the case that before death commands a change the time for one has come. Even the men who are most useful to the world, Paul, Apollos, Luther, do not die too soon. It may appear to us that a man who has done noble work has no successor. When, for instance, England loses its Dr. Arnold, Stanley, Lightfoot,
- 57. and we look in vain for one to whom the robes are becoming, we have to trust that by some education they did not foresee the Church has to be perfected. The same theory, nominally, is not the same when others undertake to apply it. The same ceremonies have another meaning when performed by other hands. There are ways to the full fruition of Christ's government which go as far about as Israel's to Canaan round the land of Moab, for a time as truly retrogressive. But the great Leader the one High Priest of the new covenant, never fails His Church or His world, and the way that does not hasten, as well as that which makes straight for the goal, is within His purpose, leads to the fulfilment among men of His mediatorial design.
- 58. XVII THE LAST MARCH AND THE FIRST CAMPAIGN Numbers xxi It has been suggested in a previous chapter that the repulse of the Israelites by the King of Arad took place on the occasion when, after the return of the spies, a portion of the army endeavoured to force its way into Canaan. If that explanation of the passage with which chap. xxi. opens cannot be accepted, then the movements of the tribes after they were driven back from Edom must have been singularly vacillating. Instead of turning southward along the Arabah they appear to have moved northward from Mount Hor and made an attempt to enter Canaan at the southern end of the Dead Sea. Arad was in the Negeb or South Country, and the Canaanites there, keeping guard, must have descended from the hills and inflicted a defeat which finally closed that way. From the time of the departure from Kadesh onward no mention is made of the pillar of cloud. It may have still moved as the standard of the host; yet the unsuccessful attempt to pass through Edom, followed possibly by a northward march, and then by a southward journey to the Elanitic Gulf when they "compassed Mount Seir many days" (Deut. ii. 1), would appear to prove that the authoritative guidance had in some way failed. It is a suggestion, which, however, can only be advanced with diffidence, that after the day at Kadesh when the words fell from Moses' lips, "Hear now, ye rebels," his power as a leader declined, and that the guidance of the march fell
- 59. mainly into the hands of Joshua,—a brave soldier indeed, but no acknowledged representative of Jehovah. It is at all events clear that attempts had now to be made in one direction and another to find a feasible route. Moses may have retired from the command, partly on account of age, but even more because he felt that he had in part lost his authority. Israel, moreover, had to become a military nation: and Moses, though nominally the head of the tribes, had to stand aside to a great extent that the new development might proceed. In a short time Joshua would be sole leader; already he appears to hold the military command. The journey from Mount Hor to the borders of Moab by way of the Red Sea, or Yâm-Suph, is very briefly noticed in the narrative. Oboth, Iye-abarim, Zared, are the only three names mentioned in chap. xxi. before the border of Moab is reached. Chap. xxxiii. gives Zalmonah, Punon, Oboth, and lastly Iye-abarim, which is said to be in the border of Moab. The mention of these names suggests nothing as to the extremely trying nature of the journey; that is only indicated by the statement, "the soul of the people was much discouraged because of the way." The truth is, that of all the stages of the wandering, these along the Arabah, and from the Elanitic Gulf eastward and northward to the valley of Zared, were perhaps the most difficult and perilous. The Wady Arabah is "an expanse of shifting sands, broken by innumerable undulations, and counter- sected by a hundred watercourses." Along this plain the route lay for fifty miles, in the track of the furious sirocco and amidst terrible desolation. Turning eastward from the palm-groves of Elath and the beautiful shores of the Gulf, the way next entered a tract of the Arabian wilderness outside the border of Edom. Oboth lay, perhaps, east from Maan, still an inhabited city, and the point of departure for one who journeys from Palestine into central Arabia. Out from Maan this desert lies, and is thus described:—"Before and around us extended a wide and level plain, blackened over with countless pebbles of basalt and flint, except when the moonbeams gleamed white on little intervening patches of clear sand, or on yellowish streaks of withered grass, the scanty produce of the winter rains,
- 60. and now dried into hay. Over all a deep silence which even our Arab companions seemed fearful of breaking; when they spoke it was in a half whisper and in few words, while the noiseless tread of our camels sped stealthily but rapidly through the gloom without disturbing its stillness."[9] For one hundred miles the route for Israel lay through this wilderness; and it is hardly possible to escape the conviction that although little is said of the experiences of the way the tribes must have suffered enormously and been greatly reduced in number. As for cattle, we must conclude that hardly any survived. Where camels sustain themselves with the greatest difficulty, oxen and sheep would certainly perish. There had come the necessity for a rapid advance, to be made at whatever hazard. All that would retard the progress of the people had to be sacrificed. There is indeed some ground for the supposition that part of the tribes remained near Kadesh while the main body made the long and perilous detour. The army entering Canaan by way of Jericho would as soon as possible open communication with those who had been left behind. The only recorded episode belonging to the period of this march is that of the fiery serpents. In the Arabah and the whole North Arabian region the cobra, or naja haie, is common, and is superstitiously dreaded. Other serpents are so innocuous by comparison that this chiefly receives the attention of travellers. One incident is recorded thus by Mr. Stuart-Glennie:—"Two cobras have been caught, and one, which has been dexterously pinned by the neck in the slit end of a stick, its captor comes up triumphantly to exhibit.... After a time the fellow let it go, refusing to kill it, and permitting it to glide away unharmed. This I understood to be from fear—fear of the vengeance after death of what, in life, had been incapable of defending itself. At Petra ... the snakes which Hamilton, a fearless hunter of them, killed, the Arabs would not allow to lie within the encampment, asserting that we should thus bring the whole snake-tribe to which the individual belonged to avenge the death of their kinsman." Whether all the serpents that attacked the Israelites were cobras is doubtful; but the description "fiery" seems
- 61. to point to the effects of the cobra-poison, which produces an intense burning sensation in the whole body. Another explanation of the adjective is found in the metallic sparkle of the reptiles. "Much people of Israel died" of the bites of these serpents, which, disturbed by the travellers as they went sullenly and carelessly along, issued from crevices of the ground and from the low shrubs in which they lurked, and at once fastened on feet and hands. The peculiar character of the new enemy caused universal alarm. As one and another fell writhing to the ground, and after a few convulsive movements died in agony, a feeling of terrified revulsion spread through the ranks. Pestilence was natural, familiar, as compared with this new punishment which their murmuring about the light food and the thirst of the desert had brought on them. The serpent, lithe and subtle, scarcely seen in the twilight, creeping into the tents at night, quick at any moment, without provocation, to use its poisoned fangs, has appeared the hereditary enemy of man. As the instrument of the Tempter it was connected with the origin of human misery; it appeared the embodied evil which from the very dust sprang forth to seek the evil-doer. Many ways had Jehovah of reaching men who showed distrust and resented His will. This was in a sense the most dreadful. The serpents that lurked in the Israelites' way and darted suddenly upon them are always felt to be analogues of the subtle sins that spring on man and poison his life. What traveller knows the moment when he may feel in his soul the sharp sting of evil desire that will burn in him to a deadly fever? Men who have been wounded can, for a time, hide from fellow-travellers their mortal hurt. They keep on the march and make shift to look like others. Then the madness reveals itself. Words are spoken, deeds are done, that show the vile inoculation taking effect. By-and-by there is another moral death. Humanity may well fear the power of evil thoughts, of lusts, of envious feelings, that serpent-like attack and madden the soul; may well look up and cry aloud to God for a sufficient remedy. No herb nor balm to be found in the gardens or fields of earth is an antidote
- 62. to this poison; nor can the surgeon excise the tainted flesh, or destroy the virus by any brand of penance. Resuming his generous part as intercessor for the people, Moses sought and found the means to help them. He was to make a serpent of brass, an image of the foe, and erect it on a standard full in sight of the camp, and to it the eyes of the stricken people were to be turned. If they realised the Divine purpose of grace and trusted Jehovah while they looked, the power of the poison would be destroyed. The serpent of brass was nothing in itself, was, as long afterwards Hezekiah declared it to be, nehushtan; but as a symbol of the help and salvation of God it served the end. The stricken revived: the camp, almost in a panic through superstitious fear, was calmed. Once more it was known that He who smote the sinful, in wrath remembered mercy. It must be assumed that there was repentance and faith on the part of those who looked. The serpents appear as the means of punishment, and the poison loses its effect with the growth of the new spirit of submission. It has rightly been pointed out that the heathen view of the serpent as a healing power has no countenance here. That singular belief must have had its origin in the worship of the serpent which arose from dread of it as an embodiment of demoniacal energy. Our passage treats it as a creature of God, ready, like the lightning and the pestilence, or like the frogs and insects of the Egyptian plagues, to be used as an instrument in bringing home to men their sins. And when our Lord recalled the episode of the healing of Israel by means of the brazen serpent, He certainly did not mean that the image in itself was in any sense a type or even symbol of Him. It was lifted up; He was to be lifted up: it was to be looked upon with the gaze of repentance and faith; He is to be regarded, as He hangs on the cross, with the contrite, believing look: it signified the gracious interposition of God, who was Himself the True Healer; Christ is lifted up and gives Himself on the cross in accordance with the Father's will, to reveal and convey His love—these are the points of similarity. "As Moses lifted up the serpent in the wilderness, even
- 63. so must the Son of Man be lifted up." The uplifting, the healing, are symbolic. The serpent-image fades out of sight. Christ is seen giving Himself in generous love, showing us the way of life when He dies, the just for the unjust. He is the power of God unto salvation. With Him we die that He may live in us. He judges us, condemns us as sinners, and at the same time turns our judgment into acquittal, our condemnation into liberty. Israel's past and the grace of Jehovah to the stricken tribes are connected by our Lord's words with the redemption provided through His own sacrifice. The Divine Healer of humanity is there and here; but here in spiritual life, in quickening grace, not in an empirical symbol. Christ on the cross is no mere sign of a higher energy; the very energy is with Him, most potent when He dies. Like the serpent poison, that of sin creates a burning fever, a mortal disease. But into all the springs and channels of infected life the renovating grace of God enters through the long deep look of faith. We see the Man, our brother, full of sympathy, the Son of God our sin-bearer. The pity is profound as our need; the strong spiritual might, sin-conquering, life-giving, is enough for each, more than sufficient for all. We look—to wonder, to hope, to trust, to love, to rejoice with joy unspeakable and full of glory. We see our condemnation, the handwriting of ordinances that is against us—and we see it cancelled through the sacrifice of our Divine Redeemer. Is it the death that moves us first? Then we perceive love stronger than death, love that can never die. Our souls go forth to find that love, they are bound by it for ever to the Infinite Truth, the Eternal Purity, the Immortal Life. We find ourselves at length whole and strong, fit for the enterprises of God. The trumpet call is heard; we respond with joy. We will fight the good fight of faith, suffering and achieving all through Christ.
- 64. At Iye-abarim, the Heaps of the Outlands, "which is toward the sunrising," the worst of the desert march was over. That the long and dreary wilderness did not swallow up the host is, humanly speaking, matter of astonishment. Yet singular light is thrown on the journey by an incident recorded by Mr. Palmer. In the midst of the broken country extending from the neighbourhood of the ancient Kadesh to the Arabah, he and his companions encamped at the head of the Wady Abu Taraimeh, which slopes to the south-east. Here in the midst of the desolate mountains a quite young girl, small, solitary traveller, was found. She was on her way to Abdeh, some twenty miles behind, and had come from a place called Hesmeh, six days' journey beyond Akabah, a distance of some hundred and fifty miles. "She had been without bread or water, and had only eaten a few herbs to support herself by the way." The simple trust of the child could achieve what strong men might have pronounced impossible. And the Israelites, knowing little of the road, trusted and hoped and pressed on till the green hills of Moab were at last in sight. The march was eastward of the present highway, which keeps within the border of Edom and passes through El Buseireh, the ancient Bozrah. We may suppose that the Israelites followed a track afterwards chosen for a Roman road and still traceable. The valley of Zared, perhaps the modern Feranjy, would be reached about fifteen miles east from the southern gulf of the Dead Sea. Thence, striking on a watercourse and keeping to the desert side of Ar, the modern Rabba, the Hebrews would have a march of about twenty miles to the Arnon, which at that time formed the boundary between Moab and the Amorites. At this point the history incorporates, why we cannot tell, part of an old song from the "Book of the Wars of Jehovah." "Vaheb in Suphah, And the valleys of Arnon, And the slope of the valleys That inclineth toward the dwelling of Ar, And leaneth upon the border of Moab."
- 65. The picturesque topography of this chant, the meaning of which as a whole is obscured for us by the first line, may be the sole reason of its quotation. If we read "Vaheb in storm" we have a word-picture of the scene under impressive conditions; and if the storm is that of war the relique may belong to the time of the contest described in ver. 26 when the Amorite chief, crossing Jordan, gained the northern heights and drove the Moabites in confusion across the Arnon toward the stronghold of Ar, some twelve or fifteen miles to the south. Yet another ancient song is connected with a station called Beer, or the Well, some spot in the wilderness north of the Arnon valley. Moses points out the place where water may be found, and as the digging goes on the chant is heard: "Spring up, O well; sing ye unto it: The well which the princes digged, Which the nobles of the people delved, With the sceptre, and with their staves." The seeking of the precious water by rude art in a thirsty valley kindles the mind of some poet of the people. And his song is spirited, with ample recognition of the zeal of the princes who themselves take part in the labour. While they dig he chants, and the people join in the song till the words are fixed in their memory, so as to become part of the traditions of Israel. The finding of a spring, the discovery that by their own effort they can reach the living water laid up for them beneath the sand, is an event to the Israelites, worth preserving in a national ballad. What does this imply? That the resources of nature and the means of unlocking them were still only beginning to be understood? We are almost compelled to think so, whatever conclusions this may involve. And Israel, slowly finding out the Divine provision lying beneath the surface of things, is a type of those who very gradually discover the possibilities that are concealed beneath the seemingly ordinary and unpromising. By the beaten tracks of life, in its arid valleys, there are, for those who dig, wells of comfort, springs of truth and
- 66. salvation. Men are athirst for inspiration, for power. They think of these as endowments for which they must wait. In point of fact they have but to open the fountains of conscience and of generous feeling in order to find what they desire. Multitudes faint by the way because they will not seek for themselves the water of Divine truth that would reinvigorate their being. When we trust to wells opened by others we cannot obtain the supply suited to our special need. Each for himself must discover Divine providence, duty, conviction, the springs of repentance and of love. The many wait, and never get beyond spiritual dependence. The few, some with sceptre, some with staff, dig for themselves and for the rest wells of new ardour and sustaining thought. The whole of human life, we may say, has beneath its surface veins and rills of heavenly water. In heart and conscience we can find the will of our Maker, the springs of His promises, revelations of His power and love. More than we know of the living water that flows through the world of humanity like a river has its source in springs that have been dug in waste places by those who reflected, who saw in man's world and man's soul the work of the "faithful Creator." From Beer in the wilderness the march skirted the green fields and valleys of the country once held by the Moabites, now under Sihon the Amorite. When they had gone but a few stages along this route the leaders of the host found it necessary to enter into negotiations. They were now some twenty miles only by road from the fords of Jordan, but Heshbon, a strong fortress, confronted them. The Amorites must be either conciliated or attacked. This time there was no circuitous way that could be taken; a critical hour had come. The presence of the Amorites on the eastern side of Jordan is accounted for in a passage extending from vv. 26-30. Moab had apparently, as at a later time referred to by one of the prophets,
- 67. been at ease, resting securely behind her mountain rampart. Suddenly the Amorite warriors, crossing the ford of Jordan and pressing up the defile, had attacked and taken Heshbon; and with the loss of that fortress Moab was practically defenceless. Field by field the old inhabitants had been driven back, out into the desert, southward beyond the Arnon. Even as far as Ar itself the victors had carried fire and sword. Retiring, they left all south of the Arnon to the Moabites, and themselves occupied the country from Arnon to Jabbok, a stretch of sixty miles. The song of vv. 27-30 commemorates this ancient war:— "Come ye to Heshbon, Let the city of Sihon be built and established; For a fire is gone out of Heshbon, A flame from the city of Sihon: It hath devoured Ar of Moab, The Lords of the High Places of Arnon. Woe to thee, Moab! Thou art undone, O people of Chemosh." The chant rejoicing over the defeated goes on to tell how the sons of Moab fled, and her daughters were taken captive; how the arms of the Amorite were victorious from Heshbon to Dibon, over Nophah and Medeba. The Israelites arriving soon after this sanguinary conflict, found the conquered region immediately beyond the Arnon open to their advance. The Amorites had not yet occupied the whole of the land; their power was concentrated about Heshbon, which according to the song had been rebuilt. The request made of Sihon to allow the passage of a people on its way to Jordan and the country beyond came possibly at a time when the Amorites were scarcely prepared for resistance. They had been successful, but their forces were insufficient for the large district they had taken, larger considerably than that on the other side of Jordan from which they had migrated. In the circumstances Sihon would not grant the request. These Israelites were bent on
- 68. establishing themselves as rivals: the answer accordingly was a refusal, and war began. Refreshed by the spoil of the fields of Arnon, and now almost within sight of Canaan, the Hebrew fighting men were full of ardour. The conflict was sharp and decisive. Apparently in a single battle the power of Sihon was broken. Leaving his fortress the Amorite chief had gone out against Israel "into the wilderness"; and at Jahaz the fight went against him. From Arnon to Jabbok his land lay open to the conquerors. And having once tasted success the warriors of Israel did not sheathe their swords. The fortress of Amman guarded the land of the Ammonites so strongly that it seemed for the time perilous to strike in that direction. Crossing the valley of the Jabbok, however, and leaving the fierce Ammonites unattacked, the Israelites had Bashan before them; a fertile region of innumerable streams, populous, and with many strongholds and cities. There was hesitation for a time, but the oracle of Jehovah reassured the army. Og the king of Bashan waited the attack at Edrei in the north of his kingdom, about forty miles east from the Sea of Galilee. Israel was again victorious. The king of Bashan, his sons, and his army were cut to pieces. Such was the rapid success the Israelites had in their first campaign, amazing enough, though partly explained by the strifes and wars which had reduced the strength of the peoples they attacked. We must not suppose, however, that though the Amorites and the people of Bashan were defeated, their lands were occupied or could be occupied at once. What had been done was rather in the way of defending the passage of the Jordan than providing a settlement for any of the tribes. When the Reubenites, Gadites, and Manassites came to dwell in those districts east of the Jordan, they had to make good their ground against the old inhabitants who remained. The army had passed into the north, but the main body of the people descended from the neighbourhood of Heshbon by a pass leading to the Jordan Valley. The return of the victorious troops after
- 69. a few months gave them the assurance that at last they could safely prepare for the long expected entrance into the Land of Promise. Suffering and the discipline of the wilderness had educated the Israelites for the day of action. By what a long and tedious journey they reached their success! Behind them, yet with them still, was Sinai, whose lightnings and awful voices made them aware of the power of Jehovah into covenant with whom they entered, whose law they received. As a people bound solemnly to the unseen Almighty God they left that mountain and journeyed towards Kadesh. But the covenant had neither been thoroughly accepted nor thoroughly understood. They began their march from the mountain of the Lord as the people of Jehovah, yet expecting that He was to do all for them, require little at their hands. The other side of privilege, the duty they owed to God, had to be impressed by many a painful chastisement, by the sorrows and disasters of the way. Wonderfully, all things considered, had they sped, though their murmurings were the sign of an ignorant rebellious temper which was incompatible with any moral progress. By the long delay in the wilderness of Kadesh that disposition had to be cured. In a region not fertile like Canaan itself, yet capable of supporting the tribes, they had to forget Egypt, realise that forward not backward was their only way, that while desert after desert intervened now between them and Goshen, they were within a day's march of the Promised Land. But even this was not enough. Perhaps they might have crept gradually northward; shifting their headquarters a few miles at a time till they had taken possession of the Negeb and made a settlement of some kind in Canaan. But if they had done so, as a nation of shepherds, advancing timorously, not boldly, they would have had no strength at the opening of their career. And it was decreed that by another door, in another spirit, they should enter. Edom refused them access to the east country. They had again to gird up their loins for a long journey. And that last terrible march was the discipline they required. Resolutely kept to it by their leader, on through the Arabah, across the desert, to the "Heaps of the Outlands towards the sunrising" they went, with new need for courage, a new call to endure
- 70. hardness every day. Did they faint once, and turn murmurers again? The serpents stung them in judgment, and the cure was provided in grace. They learned once more that it was One they could not elude with whom they had to do, One who could be severe and also kind, who could strike and also save. Decimated, but knit together as they had never been, the tribes reached the Arnon. And then, the first trial of their arms made, they knew themselves a conquering people, a people with power, a people with a destiny. It is so in the making of manhood, in the discipline of the soul. Sinai, and the awful declarations of duty and of the Divine claim there, must enter into our life; it would be light, frivolous, and incapable otherwise. But the revelation of power and righteousness does not insure our submission to the power, our conformity to the righteousness. Divine words have to be followed by Divine deeds; we have to learn that in God's kingdom there is to be no murmuring, no shrinking even from death, no turning back. It is a lesson that tries the generations. How many will not learn it! In society, in the Church, the rebellious spirit is shown and has to be corrected. At the "Graves of Lust," at the "Place of Burning," murmurers are judged, those who refuse God's way fall and are left behind. And when the Land of Promise is in sight possession of it shall not be easily obtained by those who are still half-wedded to the old life, distrustful of the righteousness of God and His demand on the whole love and service of the soul. There is indeed no heaven for those who look back, who even if angels were to hurry them on would still lament the losses of this life as irremediable. There must be the courage of the daring soul that adventures all on faith, on the Divine promise, on the eternity of the spiritual. Wherefore, that the earthly temper may be taken out of us, we have to cross desert after desert, to make long circuits through the hot and thirsty wilderness even when we think our faith complete and our hope nigh its fulfilment. It is as those who overcome we are to enter the kingdom. Not as "the world's poor routed leavings," not obtaining permission from Edomites or Amorites to slip ingloriously
- 71. through their land, but as those who with the sword of the Spirit can hew our own way through falsehoods and bring down the lusts of the flesh and of the mind, as warriors of God we are to reach and cross the border. How many survive, having gone through discipline like this? How many overcome and have the right to pass through the gate into the city?
- 72. XVIII BALAAM INVOKED Numbers xxii. 1-19 While a part of the army of Israel was engaged in the campaign against Bashan, the tribes remained "in the plains of Moab beyond the Jordan at Jericho." The topography is given here, as elsewhere, from the point of view of one dwelling in Canaan; and the locality indicated is a level stretch of land, some five or six miles broad, between the river and the hills. In this plain there was ample room for the encampment, while along the Jordan and on the slopes to the east all the produce of field and garden, the spoil of conquest, was at the disposal of the Israelites. They rested therefore, after their long journey, in sight of Canaan, waiting first for the return of the troops, then for the command to advance; and the delay may very likely have extended to several months. Now the march of Israel had kept to the desert side of Moab, so that the king and people of that land had no reason to complain. But the campaign against the Amorites, ending so quickly and decisively for the invaders, showed what might have taken place if they had attacked Moab, what might yet come to pass if they turned southward instead of crossing the Jordan. And there was great dismay. "Moab was sore afraid of the people, because they were many: and Moab was distressed because of the children of Israel." Manifestly it would have been unwise for Balak the king of the Moabites to attack Israel single-handed. But others might be enlisted against this new and vigorous enemy, among them the Midianites. And to these Balak turned to consult in the emergency.
- 73. By the "Midianites" we must understand the Bedawin of the time, the desert tribes which possibly had their origin in Midian, east of the Elanitic Gulf, but were now spread far and wide. On the borders of Moab a large and important clan of this people fed their flocks; and to their elders Balak appealed. "Now," he said, "shall this multitude lick up all that is round about us, as the ox licketh up the grass of the field." The result of the consultation was not an expedition of war but one of a quite different kind. Even the wild Bedawin had been dismayed by the firm resolute tread of the Israelites, a people marching on, as no people had ever been seen to march, from faraway Egypt to find a new home. The elders of Moab and of Midian cannot decide on war; but superstition points to another means of attack. May they not obtain a curse against Israel, under the influence of which its strength shall decay? Is there not in Pethor one who knows the God of this people and has the power of dreadful malediction? They will send for him; Balaam shall invoke disaster on the invaders, then peradventure Balak will prevail, and smite them, and drive them out of the land. There can be no doubt in what direction we are to look for Pethor, the dwelling-place of the great diviner. It is "by the River," that is to say, by the River Euphrates. It is in Aram, for thence Balaam says Balak has brought him. It is in "the land of the children of Ammo" (xxii. 5), for such is the preferable translation of the words rendered "children of his people." The situation of Pethor has been made out. "At an early period in Assyrian research," says Mr. A. H. Sayce,[10] "Pethor was identified by Dr. Hincks with the Pitru of the cuneiform inscriptions. Pitru stood on the western bank of the Euphrates, close to its junction with the Sajur, and a little to the north of the latter. It was consequently only a few miles to the south of the Hittite capital Carchemish. Indeed, Shalmaneser II. tells us explicitly that the city was called Pethor by 'the Hittites.' It lay on the main road from east to west, and so occupied a position of military and commercial importance." Originally an Aramæan town, Pethor had received, on its conquest by the Hittites, a new element of population from that race, and the two peoples lived in it side by side. The Aramæans of
- 74. Pethor called themselves "the sons of (the god) Ammo"; and, according to Mr. Sayce, Dr. Neubauer is right in explaining the name of Balaam as a compound of Baal with Ammi, which occurs as a prefix in the Hebrew names Ammiel, Amminadab, and others. It is also worthy of mention that the name of Balak's father—Zippor, or "Bird"—occurs in the notice, still extant, of a despatch sent by the Egyptian government to Palestine in the third year of Menephtah II. It may be further said with regard to Mr. Sayce's valuable work, that he does not attempt to deal particularly with the prophecies of Balaam. "They must," he says, "be explained by Hebrew philology before the records of the monuments can be called upon to illustrate them. It may be that the text is corrupt; it may be that passages have been added at various times to the original prophecy of the Aramæan seer; these are questions which must be settled before the Assyriologist can determine when it was that the Kenite was carried away captive, or when Asshur himself was 'afflicted.'" The divination of which so great things were expected by Balak is amply illustrated in the Babylonian remains. Among the Chaldeans the art of divination rested "on the old belief in every object of inanimate nature being possessed or inhabited by a spirit, and the later belief in a higher power, ruling the world and human affairs to the smallest detail, and constantly manifesting itself through all things in nature as through secondary agents, so that nothing whatever could occur without some deeper significance which might be discovered and expounded by specially trained and favoured individuals." The Chaldeo-Babylonians "not only carefully noted and explained dreams, drew lots in doubtful cases by means of inscribed arrows, interpreted the rustle of trees, the plashing of fountains and murmur of streams, the direction and form of lightnings, not only fancied that they could see things in bowls of water, and in the shifting forms assumed by the flame which consumed sacrifices and the smoke which rose therefrom, and that they could raise and question the spirits of the dead, but drew presages and omens, for good or evil, from the flight of birds, the appearance of the liver,
- 75. lungs, heart, and bowels of the animals offered in sacrifice and opened for inspection, from the natural defects or monstrosities of babies or the young of animals—in short, from any and everything that they could possibly subject to observation." There were three classes of wise men, astrologers, sorcerers, and soothsayers; all were in constant demand, and all used rules and principles settled for them by the so-called science which was their study. We cannot of course affirm that Balaam was one of these Chaldeans, or that his art was precisely of the kind described. He is declared by the narrative to have received communications from God. There can, however, be no doubt that his wide reputation rested on the mystical rites by which he sought his oracles, for these, and not his natural sagacity, would impress the common mind. When the elders of Moab and Midian went to seek him they carried the "rewards of divination" in their hands. It was believed that he might obtain from Jehovah the God of the Israelites some knowledge concerning them on which a powerful curse might be based. If then, in right of his office, he pronounced the malediction, the power of Israel would be taken away. The journey to Pethor was by the oasis of Tadmor and the fords at Carchemish. A considerable time, perhaps a month, would be occupied in going and returning. But there was no other man on whose insight and power dependence could be placed. Those who carried the message were men of rank, who might have gone as ambassadors to a king. It was confidently expected that the soothsayer would at once undertake the important commission. Arriving at Pethor they find Balaam and convey the message, which ends with the flattering words, "I know that he whom thou blessest is blessed, and he whom thou cursest is cursed." But they have to treat with no vulgar thaumaturgist, no mere weaver of spells and incantations. This is a man of intellectual power, a diplomatist, whose words and proceedings have a tone of high purpose and authority. He hears attentively, but gives no immediate answer. From the first he takes a position fitted to make the ambassadors feel that
- 76. if he intervenes it will be from higher motives than desire to earn the rewards with which they presume to tempt him. He is indeed a prince of his tribe, and will be moved by nothing less than the oracle of that unseen Being whom the chiefs of Moab and Midian cannot approach. Let the messengers wait, that in the shadow and silence of night Balaam may inquire of Jehovah. His answer shall be in accordance with the solemn, secret word that comes to him from above. Three of the New Testament writers, the Apostles Peter, John, and Jude, refer to Balaam in terms of reprobation. He is "Balaam the son of Beor who loved the hire of wrongdoing"; he "taught Balak to cast a stumbling-block before the children of Israel, to eat things sacrificed to idols, and to commit fornication"; he is the type of those who run riotously in the way of error for hire. Gathering up the impressions of his whole life, these passages declare him avaricious and cunningly malignant, a prophet who perverting his gifts brought on himself a special judgment. At the outset, however, Balaam does not appear in this light. The pictorial narrative shows a man of imposing personality, who claims the "vision and the faculty Divine." He seems resolute to keep by the truth rather than gratify any dreams of ambition or win great pecuniary rewards. It is worth while to study a character so mingled, in circumstances that may be called typical of the old world. Did Balaam enjoy communications with God? Had he real prophetic insight? Or must we hold with some that he only professed to consult Jehovah, and found the answer to his inquiries in the conclusions of his own mind? It would appear at first sight that Balaam, as a heathen, was separated by a great gulf from the Hebrews. But at the time to which the narrative of Numbers refers, if not at the period of its composition, the boundary line implied by the word "gentile" did not exist. Moses had clearly taught to the Hebrews ethical and religious truths which neighbouring nations saw very indistinctly; and the Israelites were beginning to know themselves a chosen race. Yet
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