William Norton: John Prescott has trouble with laws

William Norton was the Referendum Agent for NESNO, the designated No Campaign for the North East Referendum.  At the start of the campaign in September the opinion polls were giving an effective Yes vote of 67% to a No vote of 33%.  In the end Yes received 22% and No received 78%.

John Prescott is going through a bad patch at the moment: he’s lost his department, he’s lost his country house, he’s lost another diary secretary and he’s being investigated over his expenses. 

Don’t feel sorry for Prescott.  The system is not geared to discipline a minister with a cavalier approach toward rules of conduct (unless the Prime Minister wants him to go).  That was made abundantly clear during the North East Referendum.

Some background: in autumn 2004 there was a referendum in the north east of England on establishing a regional assembly.  This was the first vote under the Political Parties, Elections & Referendums Act 2000 (“PPERA”) and it was being studied particularly closely because at that time everyone expected it to be a dry-run for the EU Constitution. 

Interest was especially intense in the operation of PPERA section 125 which contains the famous “purdah”: no material to which this section applies (i.e. relevant to the referendum) shall be published during the relevant period (i.e. the 28 day period ending on polling day) by or on behalf of any Minister of the Crown, government department or local authority.

Furthermore, “publish” means make available to the public at large, or any section of the public, in whatever form and by whatever means.  The meaning and policy of this law is clear.  Government cannot rig a referendum by releasing material which could sway voters in the last 28 days of the campaign. 

So it was something of a surprise to see on the front page of the Newcastle Journal for 2nd November 2004, two days before the close of postal voting, the headline:

"PRESCOTT LAST DITCH VOTE BID"

Prescott gave an interview to The Journal announcing an agreement with Alistair Darling, Transport Secretary.  A new Transport Bill would permit any elected assembly to operate a passenger transport authority to oversee rail and road in its region.  So what?

That struck me as being a release to members of the public of material which “deals with any of the issues raised by any question on which such a referendum is being held” (PPERA section 125(1)(b)).  In case any reader was being slow on the uptake, Prescott indicated that these new powers proved regional assemblies were things worth having – which a fair-minded person might consider to be putting “any arguments for or against any particular answer to any such question” (PPERA section 125(1)(c)) or “designed to encourage voting at such referendum” (PPERA section 125(1)(d)).  And even a friend of Mr Prescott would concede that the Deputy Prime Minister and First Secretary of State was a “Minister of the Crown” (PPERA section 125(2)) and that two days before polling day falls inside the purdah period (PPERA section 125(4)(b)). So it means that Prescott was breaking the law.

Looked a pretty open and shut case to me.  Clearly, it is unrealistic to expect Labour politicians not to campaign for a referendum outcome in line with Government policy.  Here, however, Prescott had mentioned his negotiations with Alistair Darling about the content of the forthcoming Transport Bill.  Framing Government legislation and the policies of two departments of state could only be actions by a minister.  To clarify: giving the interview with The Journal and urging people to vote Yes was not a breach; that was political campaigning.

Mentioning new legislation on transport as a reason to vote Yes in the course of his interview was a breach; that was publishing news of a relevant ministerial decision. 

Besides: there was the sheer blatancy of waiting until two days before close of poll.  Prescott wasn’t even pretending to follow a law his own Government had introduced.  I could imagine a situation where two days before a referendum on the EU Constitution, the Foreign Secretary flies back from Paris with news of stunning “concessions” by the French President. 

The obvious place to turn was the Electoral Commission.  Eventually Roger Creedon, Chief Executive of the Commission, returned my telephone calls.  He was not much use.  Since PPERA did not mention that the Electoral Commission was responsible for enforcement, it followed that they could not act against breaches of the purdah.  A wonderfully sanctimonious excuse: it would be unethical to criticise John Prescott’s unethical behaviour.

Who does police section 125?  Well, it has the effect of creating a “public duty” (not a criminal offence) applying to ministers and quangos.  A breach of that duty should, therefore, fall to be policed by whoever policed those bodies already.  The Cabinet Office has a Propriety & Ethics Team which “advises ministers, the Cabinet Secretary, and government departments on a wide range of issues relating to standards of conduct for ministers and the Civil Service, including special advisers.”  This Team handles specific issues under the Ministerial Code (described as “the Prime Minister’s code of conduct and guidance on procedure for Ministers”).

So, I telephoned the Cabinet Office and was put through to a Miss Sue Gray, Director of Propriety & Ethics.  Miss Gray studied my complaint, decided that it was about regional assemblies (correct) and therefore forwarded it to the ODPM (not the right answer).  One can only admire the deftness of this misunderstanding.

I next received an email from a Richard Allan, Director of the Regional Policy Directorate within ODPM.  “I understand that the statement by Mr Prescott to which you refer, about the transport responsibilities of the proposed elected regional assembly, was made in his political capacity and not as a Minister of the Crown.  The press notice concerned was issued by the Labour Party, and not by a Government Department, and subsequent enquiries have been directed to the Labour Party.”

This was just obtuse.  I telephoned Allan to find out what the hell he thought he was playing at.  The substance of my complaint was action which could only have been taken by Prescott whilst acting as a minister.  It missed the point completely for Allan to refuse to get involved because Prescott claimed he was acting not as a minister.  No, said Allan: the press release was issued by the Labour Party, not ODPM.  Nothing to do with me, guv.  It is, of course, impossible that Mr Allan, the head of ODPM’s Regional Policy Directorate, allowed his judgment to be swayed by personal responsibility as ODPM’s policy on regional assemblies went down the toilet.

I went back to Sue Gray at the Cabinet Office.  I explained my predicament.  There is a law applying to Ministers of the Crown which I think has been broken by the Deputy Prime Minister.  The Electoral Commission won’t take action because they say they have no authority over that particular law.  ODPM won’t take action because they seem unable to understand the complaint.  I cannot take the complaint to the Parliamentary Standards Commissioner because he handles only cases of misconduct as a member of the House of Commons – fiddling expenses, that sort of thing.  Neither is the Ombudsman any help because they investigate maladministration by officials, and this is not an administrative matter.  So really the only people who can pursue an allegation of impropriety and unethical behaviour by a cabinet minister is the Propriety & Ethics Team of the Cabinet Office.  What are you going to do?
Oh, we don’t really do the sort of thing you’re after, replied Miss Gray.  The Cabinet Secretary does not investigate complaints against ministers.

In that case, what does the Propriety & Ethics Team do?  Oh, we advise ministers on the terms of the Ministerial Code, but we are not responsible for enforcing it.  (I did not realise at the time, but this answer appears to conflict with evidence given by Sir Andrew Turnbull to a Commons Select Committee in April 2004: see Question 91 here).  Let me check that I’ve got this correct, I said.  In the 21st Century there is a law in Britain which says that John Prescott cannot do certain things.  But if he does do those things, the person who decides whether he’s broken the law is John Prescott.  The punishment for breaking the law is to tell Parliament that he’s broken it.  And the person who decides he has to tell Parliament is John Prescott.  And even then, Parliament will probably do nothing?
Well, said Miss Gray, yes.

You know, Sue, I continued, I’ve the strangest feeling that John Prescott is going to decide that John Prescott hasn’t broken the law at all, and there’s no need for John Prescott to apologise to Parliament.

And, dear reader, it turned out that I was right.  People who defend Prescott tend to say “John is just being John”.  They’re quite correct.  He really does believe he is above the law, and it isn’t snobbery to point this out.  I can’t see him getting too worried about internal rules dictating where he can or cannot fly for a meeting. He’ll cling on as long as he can.  With luck, he’ll drag down the Labour Party with him.

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Related link: Blogswarming John Prescott