This is a bit more “ripped from the headlines” than the usual post on this substack, but it’s a puzzle of British politics which I think might have more general relevance. The question that is on my mind is something like “why are the government losing so many court cases?”. Or more particularly “why are the government taking so many silly Ls, by making rookie legal mistakes?”.
A few recent cases which for various reasons crossed my threshold in quick succession:
1) The Woodland Park datacentre. This was given planning permission by the relevant Secretary of State, overruling the local council and saying that there was no need for an environmental impact assessment. Of course, there was, and the government admitted this on the courthouse steps.
2) The proscription of Palestine Action under the terrorism legislation. The Home Office decided to say, in minutes and a press release, that one benefit of doing so is that it would make it much more operationally convenient for the police. In doing so, it ignored its own policy that terrorism legislation has to be used for terrorism reasons, not just to make things easier.
3) The local elections fiasco. After having decided to postpone local elections in the areas where councils are going to be wound up and reorganised, the Secretary of State then took a look at his legal advice and realised that once more, it wouldn’t fly.
Once is bad luck, twice is coincidence but the third time is enemy action, as the saying goes. Repeatedly, it seems that the government has got into the habit of taking decisions which it then doesn’t fancy to defend. What is going on?
All I have are hypotheses. It is possible that what we’re seeing here is arrogance. The environment of “in front of intelligent neutral parties who can’t be intimidated, with severe penalties for lying” is often an uncongenial one in which to defend one’s decisions. The idea here would be that having got where they are today by factional bullying and waiting for the intellectual and organisational collapse of the other side, the Labour Party is poorly equipped for doing things without its traditional weapons and advantages.
But I feel that this might be letting the civil servants and lawyers off the hook too easily. It might be that the professional advisors were bullied and overruled, but why has this started happening so much, so recently? Are Keir Starmer and his team really so much more intimidating than governments of the past?
Or, is there a problem of state capacity here? I think it’s also possible that we’re seeing a combination of factors; hollowing out and juniorisation in a civil and legal service that can’t pay competitive wages, plus bad habits learned during the pandemic, when it was possible to make calls on team spirit and the greater good and go well beyond your statutory powers.
In any case, our prime minister is apparently frustrated at the fact that the “levers of power” don’t work. That’s always been a bit of an odd metaphor in my view – there aren’t many machines that work by pulling levers, I think the image we’re meant to have is of a railway points-switching box. But it’s clearly one that’s now actively misleading. Pulling at levers and dialling things up and down is only a useful way of thinking about government within the normal zone of operation. We left that normal zone some time between 2008 and 2016.
So now, getting things done is more like herding (whatever your favourite difficult-to-herd animal species is). You need to either build support and consensus through politics, or you need to absolutely dot the i’s and cross the t’s with respect to the legal statutes giving you the power to act without that consensus. Our government doesn’t appear to have caught up to this reality, but I think it is a reality which has changed, rather than them just being no good at it. I might be wrong - I do not have strongly held opinions on this subject - but I do think I’ve identified something that’s going on here.
