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Home | Blogoir: The Limits Of Restraint - And The Restraint Of Limits

The Limits Of Restraint - And The Restraint Of Limits

1st December 2008

How to annoy people these days?

Make the case that the arrest of Damian Green MP was, for different reasons, reasonable:

Thus, what we have is a situation where a civil servant has been acting entirely in breach of the core principles of government administration, passing confidential information to a shadow cabinet minister, for entirely partisan party political reasons.

Irrespective of the administration served, this is an entirely intolerable situation and one might have thought that the Conservative Party in particular – supposedly upholding traditional values – would be quick to condemn such a situation.

And there's more:

Then there is the "rule of law" that Mr Macshane prattles on about.

Here, he might like to set himself a test by asking the following: if the police have reasonable suspicion that a person has committed an offence; if they then arrest him in accordance with legal procedures; if they question him within the framework of the procedures set down and agreed by parliament, and within the time-span allowed; if they then release him on bail, allowing them to carry out further inquiries and then either to charge the person or release him from bail – where is there conflict with the rule of law?

This line of analysis by EU Referendum has dismayed Iain Dale, and Samizdata:

As far as EUR is concerned, we are all getting het up about nothing and that it is high time that politically motivated civil servants were given a warning. This is nonsense: given the vast number of leaks out of the government that often have direct impacts on things like financial markets, the use of sweeping laws to deal with such matters is bizarre.

What on earth has got into that blog's authors that they should seek to excuse the use of anti-terror police in dealing with leaks that while embarrassing, posed no danger to UK national security? Had the EU acted in this way, that blog would have gone ballistic.

That latter point strikes home.

Folks.

Calm down.

EU Referendum's Richard North is on to something important. It's our old friends Limits and Judgement.

Our political system is a bit like boxing. The odd low punch is part of the ritual, but nothing but low and dirty punches is unacceptable.

So if it turns out that, say, Damian Green has been cultivating a civil servant in a Minister's office to get a steady stream of leaked official papers, his behaviour would be utterly improper.

Worse than improper. Stupid.

Because all Ministers rely on impartial and sensible people round them to give them both honest process and the best available policy advice. And if Mr Green wants to be a succesful Minister in due course, he should be upholding integrity in public service, eschewing party political gain for the wider good.

All this stands separate from whatever Gordon Brown might have done to get leaks and with leaked papers in Opposition - never defend yourself by the low standards of others, amusing and quite effective as it might be when in the TV studio.

All that said ...

Richard North nonetheless gets it wrong, in my view.

Why?

Because he argues in a formalistic way that if the police have reasonable suspicion that an offence has been committed they are then right to lumber around within the framework of 'procedures laid down by Parliament' and arrest people.

This is true. But misses the really basic point.

Which is that people at all levels of public service have to use their Judgement.

We do not think that every single law should be enforced to the limit all the time. The law is there for the public, not to oppress the public.

There are different ways of handling things.

When it became clear that the hapless civil servant in this case might be passing on documents to a senior Opposition MP but not of an Official Secrets Act level of leak, the police had all sorts of options.

They could have shown their findings to the Ministry concerned and left them to deal with it internally.

They then might have briefed the Speaker and asked him to have a quiet word with said MP. And/or they could have asked for a quiet word with David Cameron, to alert him to a potentially embarrassing problem. They also might have had a quiet word with Mr Green himself.

And left the whole business to internal disciplinary arrangements, both for the civil service and for the Conservatives.

What is grotesque about the way they in fact acted is the priggish brutishness of it.

This crass, over-heavy, 'we were only acting according to the letter of the law' brutishness is now a deep psychological problem in the UK for officials and citizens alike.

It arises directly from an erosion of the very idea of Judgement throughout public administration.

The idea of people weighing options carefully and looking for creative outcomes that fix problems by cutting with the grain of good behaviour, not cutting against it.

Of being strategic about the value of process, not behaving tactically to use process to get one's way for petty, self-centred, bossy reasons.

In the tsunami of new laws and 'Directives' and rules gushing from Westminster and Brussels in recent years, this key aspect of civilisation itself is swept away.

The dominant norm we see now is not "Let me do what is Right - and Wise", but rather "Let me do what I can get away with", crossed in a spineless way with 'If I act within the rules I can never be criticised'.

I suspect that the Clinton example will come to be seen as a turning-point for the worse in all this - long years of the world's most powerful leader trivialising his office often for the most cynical, trashy purposes.

It is all simple.

Restraint means accepting Limits. And Limits mean accepting Restraint.

And that is called Judgement.

If they get that balance right, our politicians, journalists, financiers and indeed bloggers will not go too far wrong.


Older comments:
1st December 2008
Tim Skinner
I agree with you that things might have been handled better. Clearly, however, the police often act in this brutish way, and I don't see why our politicians should be treated any differently to the way many ordinary people are treated by the police and other officials.

If, as I suspect will happen, MPs' reaction to this episode is to insist on further privileges and immunities, and hence insulation from the real effects of their own lack of legislative oversight and government maladministration, it would be entirely the wrong one. And for that reason I am with Richard North.
1st December 2008
DiscoveredJoys
Very true. Unfortunately in the search for the maximum profit many jobs have been deskilled. Instead of people being experienced in aspects of a busines function, the business function has been broken down into many simple tasks. People who only know a single task don't know how all the tasks hang together and so have nothing to exercise judgement upon. The same is true in public service, except instead of maximising profit, it is maximising key statistics (rather than delivering service). All of which explains why call centres are so dire for customers and workers, why Baby P happened (I suspect), and why Parliamentary functionaries have no judgement.
1st December 2008
Nicholas
There has been a gradual erosion in the concept of the constable's discretion where a member of the police responsible for investigating an offence decides when and whether to make an arrest. Fielding (1988): "Far from being determined by rules, the constable's discretion is exercised in accordance with his or her perception of the exigencies of any particular situation. Given the diversity of situations, there can be no rules for policing, since it is an activity without structure." Traditionally not even a Chief Constable could override that discretion. Nowadays, partly as a result of accusations of discrimination there is a tendency for police to follow the letter of their procedural regulations rather than exercising discretion or even common sense. The impact of European style law enforcement practices throughout the EU and the influence of the CPS in limiting the opportunities for police officers to act on their own discretion should not be underestimated. Discovered Joys makes a very good point. As our society places more and more emphasis on legislation, regulation and procedure rather than experience and instinct the power of human judgement and common sense diminishes and the number of justice travesties are likely to increase rather than decrease.
1st December 2008
FrancisT
Well it is, as I try to show at my blog - http://www.di2.nu/200812/01.htm - extremely illustrative of the current state of the ZANU labour party and HMG.
3rd December 2008
Alan Douglas
All stems from the socialist view of human beings as ants. We are to mindlessly follow the ant imperative rather than any kind of human being sense and discretion.

Socialism is wrong, and evil.

Alan Douglas
3rd December 2008
Pete Wass
You are arguing under the assumption that it was not in the public interest for the information in question to be leaked. In these cases however it was.

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