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Political systems, in their decline, often become so gummed up by procedure, factions, petty officials and assorted spoonbenders that no one is able to grab the reins and turn things around. Outsiders who try to are combined against and disposed of. There are more laws and rules than ever, but the only real law is that no one is in charge or responsible for anything.
In most cases, such a system develops a kind of gratuitous cynicism about itself. A giggling interior world, with its own lore, rituals and endless, wearisome intrigues. The Forbidden City; the seraglio; Versailles; the Kremlin in the days of Andropov - no one on the inside could justify this state of affairs, or imagine that things could go on like this for much longer, and so there is instead a conscious revelling in dysfunction. A despairing frivolity. Tittering schadenfreude. A perverse glee is taken at dispatching anyone who threatens to disturb this internal equilibrium. The only task becomes to keep this milieu going for as long as possible while the wallpaper peels.
But this kind of rot can be reversed, because it is so visibly self-serving that it cannot inspire any sincere defence. When preposterous rackets like the Janissaries or the Praetorian Guard were rolled up, nobody mourned them, and it was impossible to imagine them being brought back.
The trouble really begins, things really become terminal, when the dysfunction and hopeless diffusion of power starts to evolve a moral argument for itself. All the accumulated barnacles now become, instead, the rule of law, or aristocratic freedoms, or something else.
In his new book, Downward Spiral: Collapsing public standards and how to restore them, John Bowers KC, Master of Brasenose College, sets out modern Britain's version of this argument, and muses on how it might be codified for good.
Defences of the rule of Whitehall, the arms-length bodies and the courts is a fairly new genre - at most it is about 10 years old. More than anything else it arose as a reaction to Brexit, which seemed to challenge this rule. There was very suddenly a need for some overarching narrative to justify and defend the way in which England had been governed since 1997. It was found in the Nolan Principles, a set of guidelines for holders of public office written up in 1995 in the wake of ministerial scandals, and appreciated primarily as a means to police the actions of elected politicians.
These Principles are listed in full at the beginning of Downward Spiral:
So too with the issue of lobbying in Parliament, a question to which there are no easy answers. Is it a way for minority concerns to be heard, or a tool for monied interests? Thankfully, Bowers is there to remind us of what is truly important: "The Nolan Principle this area engages is the fifth, Openness."
Why abide by these principles and not other ones? Some items on the list seem contestable. 'Objectivity', for example. One premise of the Marxist idea of history is that everything about our view of the world is coloured by our class background, that impartiality is not possible and that the essential task of politics is to fight our own class's corner, come what may. The Labour Party, in its infancy, was designed as a sectional faction for Britain's trade union movement; it did not pretend to impartiality.
This principle, then, does not seem like a sound basis for liberal institutions, which are supposed to admit people of any cause and persuasion. Can politicians really be 'impartial', and would we even want them to be? Bowers resolves this and other quandaries early on. The Committee that designed the Nolan Principles in 1995 was in fact an "ethical workshop", we're told, to which Professor Ivor Crewe, an "influential political scientist" presented evidence. The findings of the Committee were then compiled in a report, which was written, thankfully, "before the cacophony of social media was even heard of".
Bowers is not interested in working any of these ideas out. The Committee has spoken. A.V. Dicey and Walter Bagehot, who wrote during an era without ethical workshops, are only engaged glancingly, at the very end of the book.
Bowers is content to take these principles as read. His reverence for them is blinking and mute. This is also the case for many of his contemporaries: in a grotesque aside at the beginning of the book, Baroness Manningham-Buller, former Director-General of MI5, boasts that she can recite them by heart.
According to Bowers, the Nolan Principles are the "key ethical principles" that make the "genuine rule of law" possible, and so as these Principles are breached, then the all-important "trust in politics" declines, and, still worse, "public disrespect for the state presents a real and important threat to it".
Much of the book is devoted to cataloguing the various breaches that have been going on over the past five years, this downward spiral. All the usual daemonology is here: Boris Johnson wanted to be a "world king" when he was a small boy; Michael Gove thinks people have "had enough of experts"; and so on.
But our author writes a suitable epigraph to his project in the very first pages of the book: "As a lawyer I found this outrageous, although it is not strictly speaking a matter of law." To people like Bowers:
'Law' is not a defined procedure, or an instrument of government, or even a body of statutes. It is instead a spiritual signifier: a stand-in for civilised society and morality. Laws exist outside of time and space, entirely separate from the state that creates and enforces them.Many European countries treat the orderly application of the law as a kind of credo, the Rechtstaat. But that is not what is going on here. Bowers and his contemporaries have an idea of law that is manifestly cruder, in which even the pettiest of public sector HR disputes are treated as high constitutional questions.
In Britain, which has a sovereign parliament, the rule of law means nothing more than the enforcement of Westminster's own acts and statutes. It is impossible by definition for the Crown-in-Parliament to 'undermine' the rule of law; as the sovereign, it makes direct interventions in the legal system as a normal event. Most recently, it declared the sub-postmasters innocent and that Rwanda was in fact a safe place to send illegal migrants. To this day, it retains the right to simply declare any individual or group of individuals guilty of a crime through a Bill of Attainder.
But because the law simply means 'morality' to people like Bowers, it so follows that every issue, every act in public life, now becomes a matter for the law. So we learn that Boris Johnson's refusal to heed the results of an internal investigation on workplace bullying, or the failure to appoint Mary Beard to her preferred post at the British Museum, are in fact affronts to the rule of law itself.
And the converse is also true: for Bowers, his own personal views about wrongdoing in public life are always a matter for the police. Bowers darkly hints that Evgeny Lebedev is Russian, a friend of Boris Johnson, and that "one might think" that the consequences of Brexit "were broadly helpful to long-term Russian interests", and so a police investigation into his elevation to the House of Lords probably should have been carried out. For Bowers, the word 'Trumpian' is a magical spell that can automatically hocus pocus anything into a sort of legal grey area. The "combative" Paul Dacre used to be the Editor of the Daily Mail, "public enemy number one of the BBC", and so his having the cheek to apply for its Directorship in late 2021 with Downing Street's support was in all likelihood a breach of the process and unlawful.
Every government limits the scope of legal actions that can be taken against it: both to allow the business of the executive to be carried on, and, still more, because there exists in every system a final court of appeal whose decisions are unarguable. You cannot sue Charles III, as, being the sovereign, he has the power to instantly pardon himself of any crime. Even countries with a formal separation of powers like the United States recognise the primacy of politics over law in these affairs. The impeachment of a President is a strictly political act; it happens at the discretion of Congress and no one else.
Bowers does not appreciate this or pretends not to. We are, instead, fobbed off with the sub-Montesquieu bromide that "no one is above the law". Time and again, whether in the case of Partygate, or Priti Patel's bullying, the elected government is accused of being its own "judge and jury". But this is almost necessarily the case; the executive is, after all, a cipher for the royal power, and possesses the confidence of Parliament, the sovereign legal authority. To give a standards regulator formal powers to police the actions of the Crown-in-Parliament would simply create a new sovereign - though one that is totally unaccountable to anyone.
In liberal democracies, a mandate from the people is in some way sacred and should be meddled with only in extremis. Politicians, then, simply cannot be judged by the standards of ordinary employees. This idea means little to Bowers, who, wearyingly, wants these people kept on a very short leash. By way of response to Partygate and similar episodes, Bowers calls for any Minister found to be in breach of the Ministerial Code to be barred from future office and to lose his or her pension. Such a system would, amazingly, leave the people's representatives with far fewer protections than those in the private sector.
What is held as sacred throughout Downward Spiral is a completely infantile idea of impartiality, objectivity and merit in public life. Bowers defends the large and growing powers of the arms-length bodies, but is scandalised that anyone might deem this power to be in any way political. Kwasi Kwarteng's decision not to name Jonathan Michie OBE as Executive Chair of the Economic and Social Science Research Council (ESSRC) for ideological reasons, was, we learn, "probably unlawful", as Jonathan "had an impressive CV and a good background" .
So too with the Chair of the Charity Commission, which lay vacant in 2021. This is a body which is responsible for regulating a £70 billion sector that includes multi-million pound advocacy concerns like the Barrow Cadbury Trust and Migrant Help. Might it have been in some way justified, then, for the elected Government to take an interest in who fills this spot? Given its powers, it is not reasonable to treat this post as simply the due right of whatever stately windbag Bowers can produce for us. True to form, our author grunts that this is all an example of a "culture war agenda", and moves on.
This learned constitutional theory of 'Ban Bad Things For Being Bad' is also applied to Gavin Williamson, Education Secretary from 2019-21. Bowers claims that Boris Johnson's failure to fire Williamson for the A-level "fiasco" of summer 2020 was a breach of convention. There is of course no objective definition of failure or fiasco; this is an idea with no constitutional meaning. It was perfectly possible to defend the use of algorithms to assign grades as a way to introduce a measure of common standards to an exam system that had completely collapsed because of lockdown. As it happened, the policy was reversed and the students at the private schools duly got their teacher-assessed three A*s.
But even this is to miss the point. What is true? What is good? What is meritorious? These things are up for debate, and are decided by the British electorate at the ballot box. To demand an objective standard of merit in public life is, in a very real sense, to jilt the whole idea of liberal institutions. Bowers imagines himself as a defender of norms and conventions, but he is entirely a product of a public sphere so hollowed out that the most basic notions of liberal pluralism have been abandoned. The clash of creeds, of ideas, of classes; the cut-and-thrust - all this means little to Bowers, a man who, amidst the hubbub and din, clings to the last to his Big Book of Principles. To his Openness. To his Leadership.
Downward Spiral makes heavy use of all the New Labour human resources-cum-lager lout stock phrases: "marking their own homework"; "not fit for purpose". Otherwise, the book's register is pious and wheedling - like Sambo and Flip of St Cyprian's. Wheedling, because whenever an issue in public life rears its head, Bowers can never resist inviting some titled nobody to step in and resolve it for us. Read on for a characteristic example:
The seriousness of the situation was emphasised by Lord Hennessy of Nympsfield, who described Johnson's reaction to being fined for breaking Covid regulations as evoking nothing less than a constitutional crisis because it put a great strain on those conventions.And pious, because Bowers is so tiresomely uncharitable towards all of his foes. Of Boris Johnson opinions vary. But there was nothing open and shut about any of the issues that dogged him. The decision to prorogue Parliament in 2019 was based on a plausible set of assumptions about prerogative powers, and the Partygate saga turned on extremely granular debates on the wording of the lockdown rules. But in Bowers's hands there is not even a nod to any of the complexities here. It's all either a prelude to tyranny and general lawlessness, or simply so much marking of one's own homework.
On a sociological level, this is odd. Bowers is no party man. He is a highly successful barrister approaching his retirement and a master of a college at one of the ancient universities. The perfect time and place, then, to philosophise: to think broadly and generously about the state of the nation and the shape of its future. But the chance is thrown away. At the sight of a designated Enemy, Bowers crinkles into a frown, and his eyes narrow, as if by some automatic process - like a character from the Elder Scrolls turned hostile.
By accepting no real limit to legal recourse, Bowers would create a system that is genuinely lawless. Treating the law as a moral idea to appeal to, rather than an orderly process for resolving disputes, is only to open the door to its complete weaponisation in political battles. At the centre of it all will lie the Nolan Principles (which Bowers wants ministers to swear an oath to), a code so vague and general that it could be feasibly used to punish anyone over anything. It will, inevitably, be found that decisions made by the elected government are not Objective, or fail to evince sufficient Selflessness, and then it'll simply be curtains.
Of course, Bowers is far from alone in his ideas. This is the house constitutional doctrine of Team Starmer, and is soon to make its final conquest of the democratic executive. As a set of ideas they are simply crass. That you can make an issue non-political by handing it over to a committee. That a lack of 'bias' in politics is achievable or even desirable. That law is not only completely independent of power, but also that its main use is to ensure that no one is able to exercise any power, in case they use it badly. That a democracy could be superintended by something like the Nolan Principles: which is a declaration that things ought to be Good rather than Bad, and reads as if it was cadged from a management away-day in Swindon.
How did educated people come to believe in these things? One answer is expediency: that this final stroke against parliamentary democracy will make all change impossible. But I would say that in the vast majority of cases the belief is entirely sincere - that we really did solve the problem of morality in politics at an ethical workshop convened by John Major in 1995. If this is all a big trick, then very few seem to be in on it.
This certainly seems to be true in Bowers' case. He is of that class of people who are always the most readily won for reigning spooks and legends: plum, stately, though remote from the realities of actual executive power. You can see it in how the ideas in Downward Spiral frequently escape the confines of any narrow political end, and the guns are turned even on members of the high officialdom. There are a number of dark mutterings about the former Cabinet Secretary Simon Case, who was part of a 'Johnson Set' (this term is apparently an actionable legal concept) - his real crime, of course, being complicity in parliamentary government.
You can see it, still more, in how our author seems genuinely baffled by the kind of fuzzy compromises that liberal society has to make. Boris Johnson promising things which he did not deliver, or massaging statistics for public consumption, were not examples of ordinary political rhetoric, but an infernal "lie machine". A slightly irritating habit of Bowers' is to come up with completely contrived "paradoxes" and then chortle at his own creations. It is paradoxical that Suella Braverman and Priti Patel want lower levels of migration, despite being the children of immigrants. There is "indeed some irony" that a post-Brexit government "involved essentially in rule making was controlled for three years by an inveterate rule breaker". Significantly, it is also declared to be a paradox that the public voted for Boris Johnson despite knowing him to be a liar. These "paradoxes" are the result of millions of people with divergent interests attempting to arrive at some majority view through deliberation, but one gets the sense that they are all too much for our author and he would like someone to step in and resolve them.
It's common now to say that views like these are part of a savvy and svelte liberal consensus. This consensus, it's said, errs in not recognising the old-fashioned pieties and moral certainties of those it rules. What Downward Spiral and similar books do, more than anything else, is give the lie to this idea. Bowers constantly invokes the People. It is said that they, with their guttural and instinctive sense of right and wrong, will soon lose faith in the whole system if nothing is done. Their political concerns are classically proletarian: not high constitutional principles, but rather money, sex, and the hypocrisy of the powerful.
The opposite is true. The average Boris Johnson voter knows that he was a liar and a cheat, but was willing to suborn these scruples to a wider political end. Such a calculation is beyond people like Bowers. In the election of 2019, Boris Johnson made his appeal to the people on a constitutional issue: Brexit; but was in some way compromised by his own personal peccadillos. By some margin, ordinary people showed that they cared much more about the former than the latter. By a strange turn of the wheel, then, it is the ordinary people, not their metropolitan rulers, who are more at ease with ethical ambiguity, and can separate morality from their politics: in other words, the essential characteristic of a secular man. But to Bowers this is all dangerously postmodern, Machiavellian. At the end of the book he throws up his hands and decries that "there is no longer a consensus view on what is ethical and what is not", and what we really need is to "reassert ethical values". In the chapter on Partygate, Bowers turns away in bafflement and disgust from the debate over legal advice, rules and terminology, denouncing it all as so much verbal trickery: "linguistic contortions". Men should say what they mean and mean what they say. This is all, in a quite objective sense, the same basic worldview of Colonel Blimp and the Outraged of Tunbridge Wells. It's simply ludicrous to cast these people as the urbane inheritors to the Bloomsbury Set, or even to the Fabian Society; or to imagine that their outlook is somehow more switched-on and metropolitan than, say, Dominic Cummings's plans to refashion the state on technocratic lines.
We are doubtless meant to take Bowers as a liberal of the old school. A solid, steady man of affairs, who sticks, perhaps naively, to old constitutionalist principles as the darkness closes in. In reality, his politics is that of the saloon bar bore: that the country is going to the dogs because there's no morality anymore, that the politicians are all in it for money, and that we need a firm hand to bring them all to heel. The difference is this: the pub bore will actually go out and vote, whereas Bowers wants to abolish the politicians. It is people like Bowers who have truly despaired of liberal democracy. The world in 2024 is growing more complex, consensus is disappearing, and the "cacophony of social media" rattles on. No wonder Bowers and his contemporaries have glommed onto something like the Nolan Principles - such was their frenzied search for some ethical steer. This is not something that others have found necessary. England's governing classes - as they are fond of saying of denizens of the Red Wall - find themselves left behind by a changing world that they do not understand.
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