Vol. 17 No. 5 · 9 March 1995

The Party in Government

Conor Gearty on how the Tories behave

6287 words

The last two years of sleaze have given the false impression that there is something new about the way in which this government now runs the country. In fact it has been an inefficient, authoritarian, hypocritical and morally bankrupt administration almost since the day it took office in 1979. Its ministers have been resigning (or not resigning) in disgrace ever since its inception. The nepotism shown towards its ‘family’ of opportunistic supporters has been evident from the start but has now grown to such a level that even the Tories themselves are interspersing their frenzies of patronage and self-aggrandisement with calls for moderation and integrity in public office, rather as the inveterate drunk forswears all alcohol during a hangover. The corruption of this long era of Conservative rule extends beyond personal venality. Though loudly committed to the rule of law, especially when it meant ruining the unions in the early Eighties, the Government has found its own actions frequently castigated as unlawful in the British courts, and pilloried in Strasbourg for the infringement of human rights. Its response has been to contrive legal ruses the effect of which has been often to place it quite literally above the law. This contempt towards one great limb of the British Constitution has been matched by the scorn it has shown towards another for which it has also affected respect. The Government’s cynical control of the Commons and its contemptuous disregard of the Lords have allowed it singlehandedly to turn Britain into the impoverished and unequal nation that it now finds itself to be. If it is the recent explosion of personal baseness that middle England has now finally noticed, then we should be thankful that they have noticed anything at all. The grasping mediocrity of this administration’s members is by no means its worst fault but it is the most beneficial to the nation if it is what eventually leads to its timely collapse.

The resignations are the best-publicised outgrowth of governmental decay. The litany of names reads like the cast-list of some bizarre Antipodean soap: Allan Stewart, wielder of the pick-axe; Michael Mates, sender of the famous watch; Norman Lamont, evictor (with some help from the tax-payer) of the tenant with too colourful a professional life; Patrick Nicholls, suspected drunk driver; Nicholas Ridley, too loquacious an advocate of anti-German feeling; and Mrs Edwina Currie (‘most of the egg production in this country is, sadly, now infected with salmonella’). Then there is the long line of sex-scandal casualties: Cecil Parkinson, Tim Yeo, David Mellor (greatly exaggerated, but not his only alleged misdemeanour), Hartley Booth, Michael Brown (though he is a borderline case, since he resigned from office while denying allegations that he had had a homosexual relationship). We should also not forget David Trevinnick and Graham Riddick, suspended from their jobs as Parliamentary Private Secretaries over allegations that they had each accepted £1000 in return for tabling Parliamentary written questions. The same ‘cash for questions’ controversy also later accounted for two senior ministers, Tim Smith and Neil Hamilton, who had to leave their posts at the Northern Ireland Office and the Department of Trade respectively.

The paradox behind this extraordinary succession of resignations is that none of them has been for what traditional constitutional law would suggest should be their main reason. When it comes to ministerial responsibility to Parliament for departmental error, the story is of ministers clinging to office rather than being expelled from it. In this respect, non-resignations can in many ways be as disgraceful as resignations. The leading figure here is Kenneth Baker, who perfected a theory about why he should slay as Home Secretary despite the succession of calamities that surrounded him, until he was eventually jettisoned by the Prime Minister after the 1992 election. Holding steadfastly to the view that policy was all that he was responsible for, and that culpability for administrative failures lay elsewhere, Mr Baker survived the escape of IRA remand prisoners from Brixton Prison, a series of scandals about vicious dogs and a House of Lords judicial decision that he was in contempt of court, among many other political reverses. The current incumbent at the Home Office, Michael Howard, has been able to rely on the example set by his tenacious predecessor when resisting calls for his resignation after similar tumultuous events.

There is at least a kind of naked honesty about such determined ambition. In the early Conservative era, the novel idea of ‘offering to resign’ (rather than simply ‘resigning’) was developed as a way of allowing honourable men to stay in office without appearing to want to do so. John Nott offered his resignation after the Falklands invasion but he allowed himself to be persuaded by Mrs Thatcher to stay in office. William Whitelaw has written that he wanted to resign as Home Secretary after an intruder had entered the Queen’s bedroom in Buckingham Palace, but that Mrs Thatcher would not let him. Jim Prior unsuccessfully tried to resign as Northern Ireland Secretary after a mass break-out of Republican prisoners from the Maze prison, and Peter Brooke failed in a more recent attempt to leave the same office after he had sung a song on a television chat show in the Republic of Ireland, hours after seven people had been killed in a particularly bad atrocity in the Province.

While ministers have been quick to take credit for perceived policy successes, and quick also to point out that administrative errors are somebody else’s problem, they have never followed the logic of this position and accepted that they must take personal responsibility for policy failures. The most spectacular example of this was Norman Lamont’s undisguised joy in the aftermath of the failure of the economic policies for which he had been responsible as Chancellor of the Exchequer in summer 1992, the collapse of which had nearly bankrupted the nation. (His wife was reported as having heard the former Chancellor spontaneously bursting into song in his bath.) Similarly blameless, apparently, were the ministers responsible for the poll tax, the Child Support Agency and the policy of Post Office privatisation, to name just three of the more well-known and obvious of the Government’s vast number of failed initiatives.

Quite why ministers should be reluctant to resign is not obvious once the clever way in which they have arranged matters for their retirement is taken into account. The Ministerial and Other Pensions and Salaries Act 1991 provides for tax-free golden handshakes for ministers leaving the Government. The first of these pay-outs were made on 11 April 1992, with the former Defence Secretary Tom King, the finally jettisoned Kenneth Baker, and the former Northern Ireland Secretary Peter Brooke each receiving £8049 of public money to assuage their sense of political failure. Lord Waddington stood down as Leader of the House of Lords at the same time, for which he received £12,639, plus (shortly afterwards) the Governorship of Bermuda, at a salary of £63,000 per annum. David Mellor received £8049 when he resigned. Michael Mates received £5137 when he stepped down. Even Norman Lamont got his £8049, supplemented soon afterwards by a job with N.M. Rothschild at a salary reputed to be in the region of £50,000 per annum. Mr Lamont has since become chair of the Taiwan Investment Trust, director of the First Philippine Trust and an occasional consultant with the investment managers Jupiter Tyndall: not bad going for a man with Mr Lamont’s record in high office.

Throughout the Thatcher/Major years, the apparent humiliation of departure from office has become for many ex-ministers the starting point for a new, apparently coincidental, but invariably highly remunerative career in the City, the opportunity for which has been repeatedly said to be entirely due to the ex-minister’s talents and to be unconnected in any way with any earlier ministerial position that he might possibly have held. As Lord Gowrie claimed when resigning from his post as Arts Minister in September 1985 to join Sotheby’s for a reputedly six-figure salary, it is impossible to live on a cabinet salary in Central London. Public-spirited ministers who persevere in public office have to make up for lost time. Thus, 99 days after resigning as Chancellor of the Exchequer in Autumn 1989, Nigel Lawson became a non-executive director of Barclays Bank and an adviser within the Barclays Group. His two-day-a-week job was reportedly worth £100,000 a year. Shortly afterwards, he became a director of the GPA Group, then the world’s biggest aircraft leasing company, with a salary estimated at £40,000 per annum for the two or three days work a month that was involved. In due course he became Lord Lawson. George Younger had reportedly not formally disclosed that he was to leave his post as Secretary of State for Defence before it was announced that he was to join the Royal Bank of Scotland and Murray Johnston Trusts.

Having been Mrs Thatcher’s staunchest ally, Norman Tebbit finally left the Government in 1987 after eight years of service. In the three years that followed, he became a director of Manpower (formerly the employment agency); a director of BET, the contract cleaning company that had donated £15,000 to the Tories in the year to March 1986; a director of British Telecom, with the privatisation of which he was heavily involved when Trade and Industry Secretary; a director of Sears, the owners of Selfridges; a director of J.C. Bamford, the excavator manufacturers; and a programme presenter on Mr Rupert Murdoch’s Sky News channel. He was also elevated to the peerage. Sir Norman Fowler, the former Secretary of State for Employment, became a nonexecutive director of Evered, the quarrying and building materials group, ten weeks after giving up his government job. He subsequently became a director of the transport group NFC. On 1 March 1990, he joined the board of Group 4 Securities, and was a director of the main UK subsidiary of the Dutch-based Group 4 while later serving as Chairman of the Conservative Party. The company became particularly well-known on account of its involvement in running newly privatised services, such as the prison escort service for the East Midlands. Sir Geoffrey Howe’s departure from government in November 1990 was followed on 8 January 1991 by appointment to a nonexecutive directorship at BICC, the international cable and construction group, for which it was reported that he was to receive an annual salary of £20,000. He later became Lord Howe. Peter Walker’s resignation in May 1990 was followed by an explosion of career activity. He took directorships with the Welsh off-shoot of N.M. Rothschild, the bank used by the government for the sell-off of British Gas, and with British Gas itself, at a salary reported to be in the region of £10,000-£15,000 per annum. (Mr Walker had been the Energy Secretary during the miners’ strike and the privatisation of British Gas.) He also took directorships with the Worcester Group, makers of domestic heating equipment, and with Tate and Lyle, for which it was reported that he was to receive £15,000-£20,000 a year. His greatest financial coup was his short sojourn (of less than four months) with Maxwell Communications Corporation (MCC), following his departure from which he reportedly received a £100,000 pay-off, a £30,000 Mercedes saloon, and £500,000 worth of MCC shares. Another former Energy Secretary, John Wakeham, subsequently Lord Wakeham, also became a non-executive director with N.M. Rothschild.

In the nine months following his departure from office, Kenneth Baker became a non-executive director of Hanson, an adviser to Cable & Wireless (of which the former Secretary of State for Trade, Lord Young, is head) and ICL, and a director of both Torrey Investments Inc. and the UK-Japan 2000 Group. Tom King became a director of the Electra Investment Trust after he had left his post as Defence Secretary. The Register of Members’ Interests for April 1994 shows the former whip and foreign office minister Tristan Garel-Jones to be an adviser to British Gas, the Union Bank of Switzerland and the civil engineering group Biwater International. David Mellor has amassed 12 paid consultancies since resigning from office, including Racal Tacticom, Ernst and Young, Short Brothers, Vosper Thornycroft and British Aerospace. Since Nigel Forman’s resignation from the Government as a junior education minister in December 1992, he has obtained paid consultancies with De Montfort University, the Institute of Chartered Accountants and the PR firm Gavin Sanderson and Company. Sir Archie Hamilton has built up a portfolio of seven directorships and four consultancies since his resignation as Armed Forces’ Minister. These include a directorship with the security firm Saladin Holdings. Edward Leigh was junior minister with responsibility for technology until he was removed by the Prime Minister. Since then he has amassed consultancies with Pinnacle Insurance, Inter-tanko and the mining group, the National Association of Licensed Opencast Operators, as well as a directorship with National Telecable, the US group which has strong disagreements with government policy in the field of fibre-optics, in which area Leigh had been involved when a minister. Nicholas Scott has consoled himself since his departure from office with a consultancy with Clark and Smith Industries, whose products include many aimed at the disabled, for whom Scott was the responsible minister when in office.

John McGregor (afterwards Lord McGregor) has rejoined merchant bankers Hill Samuel since his departure from the Transport Department, where he was Secretary of State. Hill Samuel has advised the Government in many privatisations, including that of British Airways. During Mr McGregor’s tenure at Transport, the Department appointed the bankers to advise the Government on the highspeed Channel Tunnel rail link, though there was no suggestion that Mr McGregor was involved in the decision. Other former ministers such as Robert Jackson, Tim Yeo and Robert Key have obtained jobs since leaving the government. Earlier this year, the current Conservative Party Deputy Chairman and MP, Dame Angela Rumbold, was forced vigorously to defend her £12,000 salary with a commercial lobbyist, after the company with which she was associated successfully lobbied for the Channel Tunnel rail link station to be sited in Ebbs-fleet in Kent. Dame Angela told the Nolan Committee that she had never sidled up to anyone in the Commons lobby and asked a question on behalf of the firm’s clients, ‘I am not that sort of person. I cannot bring myself to ask people favours,’ she reportedly told the Nolan Committee. The chairwoman of the company with which Dame Angela was involved until resigning in October 1994 denied that the MP’s role was to pull strings on behalf of her clients. Lord Nolan is reported to have responded: ‘Would it not be the case that if I as a normal businessman had the choice of two particular lobbyists that I would not be affected by the fact that on your board was a member of the final umpire’s body as it were – the MPs? It must be, must it not, a very good selling point for your organisation.’ The chairwoman replied that it ‘must be much more useful than to have an electrician or a plumber on the board’.

The Conservative gravy train is not confined to former ministers. By the start of January 1993, 25 of the 63 Tories newly elected the previous year had collected 38 consultancies between them. At the end of November 1994, 200 out of the 243 Conservative backbench MPs (82 per cent) held a total of 276 paid directorships of companies and 356 paid consultancies with companies or other commercial organisations, with the MPs Michael Grylls and Sir Jerry Wiggin holding as many as ten such positions each. Despite all the opportunities for financial gain within the rules, there have even been examples of a willingness to take a more covert approach to the business of making money. During the 1989-90 Parliamentary session, the Tory Member for Winchester, John Browne, was suspended from the Commons for 20 days for having failed to disclose various interests and items of remuneration, including an $88,000 payment from the Saudi Arabian Monetary Agency for a study he wrote for them. He did not fight the next election in the Conservative colours. Keith Best stood down as Conservative candidate in 1987 when it emerged that he was to be charged with criminal deception arising out of what was alleged to have been a multiple application for British Telecom shares. The ‘cash-for-questions’ controversy, referred to above, is another example. In 1994, the Department of Trade and Industry appointed inspectors to look into alleged share purchases in Anglia Television in January 1994, around the time when the company had agreed to a takeover bid by MAI plc, the owners of Meridian TV, but before the deal had been made public. Mary Archer, the wife of the Conservative peer Lord Archer, was a non-executive director of Anglia and had been present at board meetings at which the takeover had been discussed. In a statement, the DTI confirmed that inspectors were investigating ‘possible insider dealing contraventions by certain individuals including Lord Archer’. It emerged that Lord Archer had been involved in share dealing in Anglia before the takeover was made public, buying shares in the name of a business associate, these transactions generating a profit of almost £80,000. He publicly apologised for the embarrassment that the affair had caused his wife, but continued to maintain that he had had no advance knowledge of the deal. On 28 July 1994, the President of the Board of Trade, Michael Heseltine, decided that ‘no further action was to be taken.’ Six months later, Mary Archer resigned from the board of Anglia Television.

Since this affair, Lord Archer has adopted a lower profile than usual in the party to which he has dedicated so much of his leisure time. The impression has sometimes been given that the Tories have very much depended on the genial peer to raise morale and money among their grass-roots supporters. But whatever Lord Archer’s effect on morale, the Tories have never risked relying on their members for money, or even on those who vote for them. The declared company donations going to the Party before the 1987 election amounted to £5,536,268. Before the 1992 election, the figure was £3,733,552. But between 1987 and 1992, the total donations in the Party’s account rose from £13.6 million to over £19 million. Thus, the gap between donations received and donations disclosed by companies jumped from just over £8 million to over £15 million. Major-General Sir Brian Wyldbore-Smith, the Party’s director of fund-raising activities between 1980 and 1992, has been reported as saying that the Party received £7 million from foreign backers just before the 1992 election.

The honours system has been deployed in a way which has (coincidentally, one assumes) rewarded major financial backers of the Party. Mrs Thatcher’s period in office was particularly active in this regard. In her first six years in power from 1979-85, 11 private-sector industrialists were given peerages, all of whom directed companies which had donated a total of £1.9 million to Conservative funds over the same period. Ten companies each gave the Conservative Party more than £200,000 between 1979 and 1984. Nine of them, accounting for £2 million, had members of their boards of directors honoured between 1979 and 1986, with a total of six peerages and five knighthoods. Over two-thirds of the private sector industrialists who received knighthoods in the same period were directors of companies which had given money to the Party, whereas only a third of the top 50 UK companies at the time had made such contributions.

In the New Year’s honours list for 1986, there were knighthoods for Godfrey Messervy (Lucas: £110,000 since 1979 and Costain: £105,650 since 1979), John Milne (Royal Insurance: £110,500 since 1979), and Ian Fraser (formerly of Lazards: £86,100 since 1979). The same list in 1987 saw knighthoods bestowed on Frank Gibb (chairman and chief executive of Taylor Woodrow which had given £35,000 to the Party in the previous financial year) and Derek Alun-Jones (a director of Royal Insurance, which had also given £35,000 the previous year). At the height of the Tory leadership crisis in November 1990, a group of businessmen with, in their words, ‘major responsibilities for the future industrial and economic prosperity of our country’, wrote to the Times urging Tory MPs to continue to support Mrs Thatcher. Of the 15 correspondents, ten had received either a peerage or a knighthood during Mrs Thatcher’s time in office. (An eleventh would receive his peerage in her resignation honours list.) Eleven of the companies for which the 15 had responsibility were major contributors to Conservative Party funds. In her resignation honours list, Mrs Thatcher awarded peerages to Sir Hector Laing (life president of United Biscuits, which gave £632,500 to the Party during the Thatcher years); Sir Gordon White (head of the US arm of Hanson, which gave £652,000 to the Tories and £100,000 to the Centre for Policy Studies in 1981-90); Sir Jeffrey Sterling (head of P & O, which gave £370,000 during the Thatcher years); Peter Palumbo (Chairman of the Arts Council but also owner of Rugarth Investment Trust, which gave £268,099 to the Tories in 1986-8); and Sir Eric Porter (chief executive of Trafalgar House, which gave £460,000 to the Tories during the Thatcher years).

The privatised industries have also been keen supporters of the party. Thames Water has taken the direct approach, reportedly giving the Tories £50,000 just before the 1992 election. But more routine is the involvement of party friends in the upper echelons of the industry, with (as we have seen) former ministers such as Tristan Garel-Jones, Kenneth Baker, Lord Young and Sir Norman Fowler all involved in one or other of the companies. Conservative backbenchers are also beneficiaries of these new emperors of the market economy. As of April 1994, Sir Marcus Fox and Sir Keith Speed were both directors of the PR firm, Westminster Communications, whose clients include British Gas. Other Tory backbenchers with links to British Gas include Jack Aspinwall (a Parliamentary and public affairs consultant) and Dr Michael Clark (a Parliamentary adviser). Southern Water enjoys the services of Andrew Bowden as its Parliamentary consultant. Southern Electricity expressed its appreciation of Ian Bruce by making him a gift of two fax machines. British Telecom uses Simon Coombs as its Parliamentary consultant, Midlands Electricity has Andrew Hargreaves and National Power has Alan Hasel-hurst. Sir Malcolm Thornton is Parliamentary consultant to North West Water. British Aerospace and Cable and Wireless are both clients of Sir Michael Marshall. Sir Giles Shaw is a director of British Steel. It is not surprising that the privatised industries should feel so open to the employment of Conservative MPs. Of the companies mentioned above, the enormous increases in remuneration for the heads of British Gas and British Telecom are too notorious to need mentioning here. The Party’s policy of privatisation has also increased the chairman’s salary at Thames Water by 154 percent, at North West Water by 571 per cent, and at Southern Water by 260 per cent. The chairman at Midlands Electricity enjoys a total remuneration package which was reportedly increased last year by 50 per cent to something in the region of £290,000.

Despite devoting so much time and energy to the protection of its members’ and their Party’s interests, the Government has also found the time since 1979 radically to undermine the democratic life of the nation. The most obvious such effort was by the Party’s flagship local authority, Westminster Borough Council, whose commitment to the Tory purity of its electorate led to allegations of gerrymandering and to a provisional finding by the district auditor in January 1994 that ten councillors and officers, including the Council leader Lady Porter, should pay £21.25 million in surcharges. But of greater national significance was the effect that the poll tax had on the electoral register. It is now estimated that more than a million people failed to be counted by census enumerators in April 1991: they went to ground for fear of being forced to pay the tax. It is generally assumed that Labour voters were the most likely to choose to disappear from public view. The result was that the population of England and Wales was shown (quite wrongly) to have fallen during the Eighties. Scotland’s population was recorded as the lowest since 1931. The biggest ‘population falls’ of all were the 10 per cent drops recorded in the London boroughs of Lambeth and Brent, both of which had high poll tax rates.

Another effective way of circumventing the electorate is through the astute use of quangos. It is now a very long time since the Report on Non-Departmental Public Bodies by Sir Leo Pliatzky was welcomed by the newly appointed Prime Minister Mrs Thatcher on account of its scathing attack on the quango culture in modern Britain. A recent report put the amount of public money disbursed by such bodies after 15 years of Tory rule at £41.7 billion per annum, or a fifth of all public expenditure. A study published in 1993 analysed the role of party patronage in making appointments to 41 such bodies. The Court of Directors of the Bank of England has 18 members. Six of them are associated with companies that make donations to the Conservative Party, including Frances Heaton (non-executive director at Lazards: £20,000 in the preceding year), Sir Martin Jacomb (director of Marks and Spencer: £50,000 in the run-up to the 1992 election) and Sir ‘Chips’ Keswick (Hambros Bank: £53,000). At the time of the study, Sir David Nickson was chairman of Scottish Enterprise, on an annual salary of £48,483. Sir David was also non-executive director of General Accident, Hambros and Scottish and Newcastle Breweries, all of whom are or have been generous contributors to Conservative Party funds. When the Funding Agency for Schools was established for England and Wales, the then Secretary of State for Education, John Patten, made 12 appointments. They included Stanley Kalms (chairman of Dixons: £25,000 to the Tories in the preceding year), Sir Robert Balchin (the Tory Party chairman for South-East England), Edward Lister (the Tory leader of Wandsworth Council), three headteachers at grant maintained schools, and one representative from the public schools. Patten chose as chairman Sir Christopher Benson, who also happened to be the chairman of Sun Alliance, which had given some £280,000 to the Party over the preceding six years, including a £50,000 donation the year before.

For issues that have unavoidably to be put through the democratic process, the Government has finely tuned its control of both the lower and upper houses so as to limit as much as possible the opportunity for independent input or critical appraisal. When the ranks of the PPSs are added to those of ministers, the Government has some 130-150 of its own members – the ‘payroll vote’ – who together with ordinary, unreflectingly obedient back-benchers are certain to give it an automatic majority on all but a few very exceptional issues. Under Mrs Thatcher and Mr Major this guaranteed majority has been used in an unprecedented way to prevent even the discussion of provisions going through the House. The allocation of time order (or guillotine motion) used to be a wholly exceptional way of shortening an apparently never-ending debate in the Commons. It is now a normal part of what passes for the ‘democratic process’. In the 1979-80 session, it was used to shorten debate on four bills. From 1980 to 1987, a total of 18 bills were guillotined. In 1987-8, debate on five measures was truncated. In 1988-9, the Government curtailed debate in the Commons on the Children Bill, the Companies Bill, the Dock Work Bill, the Employment Bill, the Football Spectators Bill, the Local Government and Housing Bill, the Official Secrets Bill, the Prevention of Terrorism (Temporary Provisions) Bill, the Self-Governing Schools (Scotland) Bill and the Water Bill. Four further measures were guillotined in 1989-90. This disregard of the Commons reached its climax under Mr Major, when in the space of three months early in 1992 six important measures had their examination curtailed. These included the Local Government Bill, the Education (Schools) Bill, the Further & Higher Education Bill and the Local Government (Finance) Bill. The point of supreme contempt was reached on 13 March 1992, when the Government forced through a motion which simultaneously curtailed debate on two not obviously connected measures, the Finance Bill and the Further & Higher Education (Scotland) Bill.

Perhaps because they are occasionally embarrassed by the degree of control they exert over the democratic process, ministers sometimes point to the House of Lords as the place where they are more likely to be forced to rethink and to revise their plans. But the reality is that the Government invariably gets its way in the upper as well as the lower house. In 1989, the then Lord Privy Seal, Lord Belstead set out the number of times the Lords had actually triumphed over the executive on matters of legislative detail in the preceding ten years. In 1980-81, the Lords had disagreed on three matters but pursued none of them. In 1981-2 and 1982-3 no disagreements arose. In 1983-4, the Lords had disagreed on several matters but secured a change on only one of them. In 1984-5, the Lords had disagreed on several draft provisions but pursued none of them when the executive refused to yield. In 1985-6, the Lords disagreed on several matters and succeeded in achieving changes on two of them. In 1986-7, there were no disagreements. In 1987-8 and 88-9, the two houses had several differences of view, but the Lords enjoyed only one clear-cut victory. On 23 May 1988, the poll tax passed through the Lords with the support of 317 peers (219 of whom were hereditary peers), against 183 members who had voted to ameliorate the measure. Some days later Mrs Thatcher was ‘delighted to say that we won the debate in their Lordships’ House earlier this week on the sheer merit of the argument’. Of course if the Lords do persist in dissent, there is always the Parliament Act procedure to fall back on. In 1991, the Government insisted on enacting the War Crimes Bill even though it was twice rejected by the upper house.

Despite this array of constitutional protection, the Conservative administrations of the past 16 years have managed to break the law on an astonishing scale. In over twenty cases the Government has been found to be in breach of its obligations under the European Convention on Human Rights. Breaches of EU law have sometimes been quite blatant, most famously when the European Commission ordered the Government to recover ‘sweeteners’ of £44.4 million that had been given to British Aerospace to facilitate its purchase of Rover. The ‘sweeteners’ had been kept secret from the Commission and from Parliament. Almost routine are the judicial review proceedings where ministers are held to have acted beyond their powers, such as the decision in 1984, when Mr Justice Woolf found that the Department of Health and Social Security had acted illegally in failing to pay back benefits to 16,000 people entitled to receive about £25 each. The DHSS apparently felt that the reimbursements were too administratively inconvenient. The Foreign Secretary Mr Douglas Hurd could easily survive the critical flak that descended on his department after the true nature of the Pergau dam deal with Malaysia emerged. But the unanimous condemnation of a House of Commons’ committee could be ignored in a way that was not possible with the subsequent court decision that the deal was unlawful. Much of that court judgment was to do not with the substance of the Government’s actions but with the question of whether the litigant challenging the decision could be heard in court. Once the judges permitted such an intervention, it was more likely than not that the illegality of the Government’s actions would be laid bare. In two other cases, the executive has similarly sought to flout the law while believing itself to be protected by procedural rules from judicial scrutiny. The Home Secretary Michael Howard tried to continue to exercise his prerogative powers, notwithstanding the enactment of legislation on criminal injuries compensation, as a way of ensuring that the compensation to victims was not as high as the statutory scheme intended it to be. This was declared unlawful in the Court of Appeal on 9 November 1994. In a celebrated case some years before, Mr Howard’s predecessor Kenneth Baker had ignored a judge’s order to have an asylum seeker returned to Britain because he believed that the Government had no obligation to obey such rulings. The House of Lords in its judicial capacity subsequently found the Home Secretary in contempt of court for acting as he did.

So exasperated by the courts has the Conservative Government become that it has developed the habit in recent legislation of seeking to insulate the decisions of statutory bodies from judicial review. The decisions of the tribunal set up by the Interception of Communications Act 1985 are not ‘subject to appeal or liable to be questioned in any court’. The bodies set up to oversee the security services are likewise insulated from judicial review. Before it became a familiar practice, such legislation was thought to be totally unacceptable in any country supposedly informed by respect for the rule of law. But in Tory Britain, it is possible to pay an estimated £238 million for the new headquarters of MI5 and £150 million for MI6’s new home, which also cost £86 million to equip. The two services’ annual running costs are now estimated to be £200 million a year, and GCHQ alone is reckoned to cost £400 million to run. The Government can almost certainly be guaranteed victory in court simply by uttering the magic formula ‘national security’ in the judge’s presence. Mrs Thatcher first stumbled on this exculpatory phrase when seeking to persuade the law lords that the ban she had imposed on trade unions at GCHQ without consultation was legitimate, despite being otherwise unlawful, because it was imposed on the grounds of national security. Their lordships agreed, and a majority were of the view that the definition of national security was primarily a matter for the executive. Needless to say a field-day of ‘national security’ cases has followed. No reasons are given to those banished from Britain under the terrorism legislation because of the ‘interests of national security’. The pre-deportation detentions during the Gulf War remained unexplained to the victims of this executive power for the same reason. The success the Government had in securing a series of injunctions from the courts in the Spycatcher litigation was almost entirely due to its determined, almost obsessive, deployment of the national security card. In January 1987, a film about the Zircon satellite was withdrawn by the BBC. It was then made the subject of a Speaker’s ruling which prevented it from being shown privately to a group of MPs. An injunction was also obtained against the journalist involved in making the programme, and his workplace and home were searched under the Official Secrets Act. The offices of BBC Scotland were also raided by the Special Branch and documents seized in a 28-hour raid. In December the same year, an injunction from Mr Justice Owen prevented the transmission on the BBC of a series of programmes about the security forces, entitled My Country Right or Wrong.

The most extreme example of the lawless effect of executive reliance on national security arose after the Stalker/Sampson inquiry into allegations of a shoot-to-kill policy operated by the security forces in Northern Ireland in the early Eighties. On receiving the report of the inquiry team, the Director of Public Prosecutions for Northern Ireland formed the view that there was evidence of the commission of offences (perverting the course of justice and obstructing a constable in the execution of his duty) sufficient to require consideration whether prosecutions were in the public interest. The then Attorney-General, Sir Patrick Mayhew, acquainted himself with the circumstances, including what were later described to Parliament as considerations of national security. In the light of all the facts and information, the DPP concluded that it would not be proper to institute any criminal proceedings against any officers, a decision that was robustly defended by Sir Patrick in the Commons on national security grounds. John Stalker had himself earlier been removed from the inquiry in controversial circumstances, with one of the complaints against him having been his association with a supposedly shady businessman. The man concerned was greatly damaged by this allegation, and by the searches of his home, his company property and his accountant’s offices that occurred at the same time. His effort to obtain a court order compelling the police to reveal the basis of the information on which the search warrants were obtained proved fruitless. The relevant documents were held in the High Court to be immune from disclosure on public interest grounds. When Mr Stalker’s assistant in the inquiry subsequently launched libel actions against the former chief constable of the RUC, a case arising out of remarks made in the course of a television programme, the case was inhibited by a certificate issued by the Secretary of State preventing disclosure of relevant material relating to the security forces on the ground of national security.

This ever-increasing dependence on public interest immunity to deprive courts of the evidence necessary properly to determine cases involving issues of concern to the executive came to a head in the Matrix Churchill case, when the casual submission of such certificates was overridden by the judge. The result was the exposure to public view of a government apparently willing to let men go to prison rather than reveal changes in policy that had not been admitted to Parliament. The Matrix Churchill scandal provoked the Scott inquiry, just as the Hamilton resignation was later to lead to the Nolan Committee. The Government has surrounded itself by judges, with a brief to scrutinise its failures, its moral laxity, and its incompetence. But the answer to the current malaise is not difficult to discover. It does not require the expert and expensive judicial mind. The solution is not new guidelines, or a new select committee, or greater transparency, or the resignation of this or that minister, or Parliamentary reform, or a Bill of Rights, or a new citizens’ charter. The answer is the removal of the Conservative Party from office.

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Vol. 17 No. 7 · 6 April 1995

Conor Gearty’s incisive account of the ‘inefficient, authoritarian, hypocritical and morally bankrupt way’ in which Conservative government has run the country since 1979 (LRB, 9 March) omits one highly significant example of the corruption engendered by Thatcher and upheld by Major. I refer to the advantageous treatment, amounting to illegality, handed to Rupert Murdoch in allowing him a monopoly of our national press and positively nightmarish control of satellite TV at the expense of a consistently undermined BBC.

Bryan Robertson

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