The Johnson affair
On 15 September 2017, Boris Johnson, Foreign Secretary, wrote an article in the Daily Telegraph in which he stated that "once we have settled our accounts, we will take back control of roughly £350 million per week". Two days later, the Chair of the UK Statistics Authority sent a letter to Mr Johnson describing the use of this figure as "a clear misuse of official statistics". Mr Johnson responded with a letter to the Chair, accusing him of misrepresenting what he said and demanding a retraction.
On one level the affair may be viewed as of little consequence other than impinging on the reputations of two public figures, and creating short-term heat in political and media discourse. But the affair also illustrates two very different visions of constitutional accountability which have been exposed by Brexit.
At one of the spectrum, there are those that advocate the superiority of directly democratic routes to accountability, almost to the exclusion of other methods. According to this approach, free speech and political discourse are defended as the only fully legitimate sources of accountability. A free media, free and fair elections, and democratic chambers are accepted as constitutionally protected fora within which political battle is held. A limited model of the rule of law and the doctrine of ministerial responsibility are also accepted as necessary concessions to the need to prevent abuse of power, but otherwise strong government is legitimated by the transparency of the periodic electoral process and the powerful role of the opposition. By this approach, the role of other accountability institutions are either objected to or heavily circumscribed. In the Johnson affair, therefore, the work of the Authority has been critiqued, and the Chair's intervention taken as an example of an inappropriate intervention by an unelected institution into a highly political matter.
At the other end of the spectrum, accountability in the modern state is seen as a much more complex animal. For instance, James Madison in the Federalist papers (1788) once said:
Madison's is a thesis warning of the dangers of unchecked executive power. Part of his solution was the distribution of political powers across different layers of government (what we would refer to as devolution), but public lawyers also spend much of their time debating what his form of reasoning means for the role of the judiciary. The range of auxiliary precautions that might be put in place, however, goes well beyond the judicial - as the 'Johnson affair' highlights. When these auxiliary precautions are ignored or resisted by politicians then there is a risk that the constitution's political and administrative culture of good governance is undermined.
At one of the spectrum, there are those that advocate the superiority of directly democratic routes to accountability, almost to the exclusion of other methods. According to this approach, free speech and political discourse are defended as the only fully legitimate sources of accountability. A free media, free and fair elections, and democratic chambers are accepted as constitutionally protected fora within which political battle is held. A limited model of the rule of law and the doctrine of ministerial responsibility are also accepted as necessary concessions to the need to prevent abuse of power, but otherwise strong government is legitimated by the transparency of the periodic electoral process and the powerful role of the opposition. By this approach, the role of other accountability institutions are either objected to or heavily circumscribed. In the Johnson affair, therefore, the work of the Authority has been critiqued, and the Chair's intervention taken as an example of an inappropriate intervention by an unelected institution into a highly political matter.
At the other end of the spectrum, accountability in the modern state is seen as a much more complex animal. For instance, James Madison in the Federalist papers (1788) once said:
In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed: and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Madison's is a thesis warning of the dangers of unchecked executive power. Part of his solution was the distribution of political powers across different layers of government (what we would refer to as devolution), but public lawyers also spend much of their time debating what his form of reasoning means for the role of the judiciary. The range of auxiliary precautions that might be put in place, however, goes well beyond the judicial - as the 'Johnson affair' highlights. When these auxiliary precautions are ignored or resisted by politicians then there is a risk that the constitution's political and administrative culture of good governance is undermined.
The UK Statistics Authority as an example of unelected accountability
The UK Statistics Authority was established under the Statistics and Registration Service Act 2007. According to its own website, the "authority is an independent statutory body. It operates at arm’s length from government as a non-ministerial department and reports directly to the UK Parliament, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly." The Authority is, therefore, a classic example of an unelected accountability institution, with a basic rationale to secure trust in government.
The Authority is part of an extended network of unelected accountability in the UK. Take for instance the role of audit. A bespoke public official has been charged with auditing government expenditure since at least 1314, a role today enshrined in the National Audit Act 1983 and the independent offices of the Comptroller and Auditor General and the National Audit Office. Without the input of the AG and the NAO, the Government's version of its accounts on income and expenditure would go under-scrutinised. Plausibly a combination of free speech, Parliamentary debate and the role of the political opposition would prevent the Government from presenting inaccurate accounts, but this raw version of monetary accountability has long since been rejected. Reasons for this rejection include:
- the powerful Machiavellian incentives for Governments to massage financial information for electoral gain;
- the lack of resources within Parliament to perform the function of scrutinising highly technical matters such as financial accounting;
- the inefficiency and impracticability of dedicating Parliamentary resources to investigating financial trails of accountability;
- the benefits to all sides of neutralising a potential area of permanent political discord;
- the benefits in terms of good decision-making of being able to rely on objectively agreed financial information;
- the enhanced public trust that follows from the objective confirmation of financial information.
When is institutional independence necessary?
A key feature of institutional accountability is the perceived capacity of autonomous institutions to safeguard the conditions of trust which are necessary to enable the ordinary political process to operate effectively. There may be something special about financial audit that justifies it being removed from the realms of political accountability, but the technique of taking the political out of the direct control of decision-making is a common feature of the modern state. Which raises the question of when this form of institutional design is necessary?
A controversial example is monetary policy. Under the Bank of England Act 1998 an independent body, the Bank’s Monetary Policy Committee, sets the Bank's interest rates with significant ramifications for the country's economic policies. In the performance of this duty, however, the Committee works towards Government set targets and, as well as being publicly accountable for its decision-making, the Bank has to write a letter to the Chancellor should those targets not be met.
With the Bank of England's current remit, many of the same rationales for independence apply as for other unelected institutions, although here the concern is less with the need for accountability and more with a distrust of the Government's capacity to undertake long-term decision-making when the temptation is to play to short-term electoral advantage.
Tellingly, there is less agreement as to the advantages of placing monetary policy outside the direct influence of politicians than there is for the role of audit, as several Brexit-related attacks on the input of the Governor of the Bank of England highlighted. But precisely because the Bank of England example is controversial, it highlights three importance aspects of the role of unelected accountability:
- For various reasons, unelected accountability is often created by Parliament - namely the directly elected branch of the constitution. This design legitimises the unelected branch, but also entails that Parliament can alter (or remove) the remit of unelected accountability institutions at any time.
- Unelected accountability is itself accountable for its input and performance.
- Due to the nature of this ongoing scrutiny, there is no such thing as full independence, as an unelected accountability institution will always experience a range of soft and discrete pressures (eg budget cuts, threats of reappointment) to alter its practices in line with Executive policies.
The Johnson affair and the politics of accountability
The 'Johnson affair' illustrates the contours long which debates about the extent and design of the unelected accountability sector are fought.
Along much the same logic as other unelected institutions, the UK Statistics Authority was established with "a statutory objective of promoting and safeguarding the production and publication of official statistics that ‘serve the public good’." Its very existence serves to undermine the claims of those that believe that the UK Constitution is best understood as very raw form of political constitution, in which only political debate matters.
But does the 'Johnson affair' provide sustenance to the argument that unelected accountability undermines democracy and that the role of unelected accountability should be reduced?
There are several standard arguments used to critique unelected accountability.
Unelected institutions are undemocratic
The first is simply that unelected institutions are undemocratic, in that they remove power illegitimately from the democratic branch. Such an argument is hard to sustain, however, in circumstances where it is the choice of the elected branch itself to establish an unelected institution, as is the case with the UK Statistics Authority. Such arguments become weaker still where unelected institutions have not been subsequently abolished by later Parliaments who might not have the same political incentives to support their operation. Here it is telling that new Governments have often been known to start office with a fanfare intention of creating a 'bonfire of quangos' but later to backtrack when they realise the benefits of such institutions, and the bad look it creates to be reducing opportunities for accountability or individual justice.
Unelected institutions get involved in political matters
A further objection against unelected institutions is that they may have a role to play in dealing with narrow 'technical' matters, but they are inappropriate for dealing with 'political' issues. The difficulty with maintaining such a distinction is illustrated by the work of the Authority.
Although the 2007 Act does not clearly describe the situation which occurred in the 'Johnson affair', it does provide plenty of scope for the Authority acting in the way it did. The Authority has as an objective the oversight of the production and use of Government statistics. Under s.6, statistics are defined as including "statistics produced by a government department ... or ... any other person acting on behalf of the crown" (s.6(a)). Nothing here suggests that there are certain circumstances, which we might label 'political', when the Authority should not intervene. Indeed, two possibilities follow form the Act which justify the Authority's intervention in the 'Johnson affair':
- It is arguable that in writing the article Mr Johnson was purporting to refer to the Government's official statistics on the UK's contributions to the EU. Indeed, given the long history of the £350 million claim and its misrepresentation of 'gross and net contributions' of the UK Government to the EU, it is barely sustainable to argue that Mr Johnson was not trying to use officially sourced figures in this instance.
- In producing figures in the article Mr Johnson was writing as a member of the Cabinet and was hence covered by the Act, notwithstanding that he did not appear to be speaking for the Government in writing the piece. Whilst the convention on collective responsibility can be strained, there seems no good reason to suppose that a senior figure such as the Foreign Secretary should be able to step outside of their ministerial duties to reproduce inaccurate data.
Unelected institutions tend to overreach their powers?
The fear of the unelected over time stretching their powers beyond that lawfully mandated to block the legitimate exercise of executive power is a familiar refrain of those that argue for elected accountability only. Did the Authority in the Johnson affair exhibit such a tendency?
Under s.10 of the 2007 Act, the Authority is under a duty to produce a Code of Practice for Statistics. In turn, the Code of Practice and its stipulations are referred to as relevant to Ministers at para. 8.15 of the Ministerial Code.
The current version of the Code reproduces an extract from the seven principles of public life, as once voted upon by Parliament and which remain a component of the Ministerial Code. The Code of Practice for Statistics states:
In relation to statistical work, these [principles] are interpreted as follows.
• Integrity – putting the public interest above organisational, political or personal interests.
• Honesty – being truthful and open about the statistics and their interpretation.
• Objectivity – using scientific methods to collect statistics and basing statistical advice on rigorous analysis of the evidence.
• Impartiality – acting solely according to the merits of the statistical evidence, serving equally well all aspects of the public interest.
A later section of the Code states the duties of public bodies in relation to statistics as including:
Ensure that government statements issued alongside official statistics, and referring to, or based upon, them: ... (c.) meet basic professional standards (for example, statistics should be cited accurately, ...) (para.9)
The Code of Practice, therefore, outlines a number of grounds upon which the Authority could conclude that Mr Johnson had inaccurately used the £350 million claim, notwithstanding the fact that the way in which he used the information was undoubtedly political. There is no solid ground to find this an illegitimate instance of overreach.
Unelected institutions should err on the side of caution
Given the broad and uncertain nature of the issues that they are charged to deal with, unelected institutions tend to be given very broad discretionary powers. An argument may be raised that in response, bodies such as the Authority should err on the side of caution to avoid being dragged into the political domain.
There is no specific power covering the scenario in the 'Johnson affair', but under s.26 of the 2007 Act the Authority's "Board may do anything which it thinks necessary or expedient for the purpose of, or in connection with, the exercise of its functions." Further, s.8 states that
(1) The Board is to monitor the production and publication of official statistics.
(2) The Board may report any concerns it has about—
(a) the quality of any official statistics,
(b) good practice in relation to any official statistics, or
(c) the comprehensiveness of any official statistics, to the person responsible for those statistics.
(3 ) The Board may publish its findings or any report under this section.
There is plenty of scope, therefore, for interpreting that it is within the Authority's legal competence to intervene in instances where official statistics are used in a manner it deems inappropriate. How it should be exercised is one about which there will inevitably be disagreement. With considerable sophistry, Johnson (and his supporters) later argued that his words should have been interpreted more generously. This is arguable, but the stance of the Authority on the issue was not new, as the previous Chair of the Authority had in May 2016 written a letter outlining his unease with Vote Leave's use of the £350 million claim. It would have been inconsistent, therefore, not to have commented on this occasion.
Unelected institutions fail when they decide matters inconsistently (and can be biased)
A linked argument against unelected institutions is that they offer an inconsistent form of decision-making which undermines their very claim to objectivity. Worse still, their appointment process and past allegiance can expose them to criticisms of bias.
In the 'Johnson affair' it has been suggested that the Authority has been selective in its intervention - in other words, by intervening in this instance the Authority opens itself up to future criticism every time that it chooses not to intervene when a slightly dubious claim of official statistics is made.
This must be conceded as a risk, but any such accusation is only as strong as the evidence that supports it. In this instance, the website of the Authority is full of examples where the Authority has offered an opinion in a manner and form not too dissimilar than in the 'Johnson affair'. A full analysis of the website might reveal an anomaly in the 'Johnson affair', but even that would need to be weighed against the fact that the Authority had already pronounced its view on the £350 million claim and the seniority of the Member of government involved.
Unelected institutions are ineffective
A general brick thrown at unelected institutions are that they are ineffective. For instance, it may be that Mr Johnson preserves his position as Foreign Secretary even though the Authority concluded that he had misled the public. To conclude that the Authority has therefore had no effect, however, is to misunderstand the nature of the impact of unelected institutions. Evaluation in this area is notoriously difficult, but the influence of bodies such as the UK Statistics Authority is often more subtle than the win/lose outcomes of the courtroom. For instance, a tangible result of the Authority's intervention in the 'Johnson affair' is that the problematic of the £350 million claim has once again been highlighted, and both Johnson and his supporters have in their responses been required to highlight the nuanced (some would say tortuously so) way in which any claim of such money has to be made if the statistical facts are to be adhered to. A further claim, albeit immeasurable, in favour of the Authority is that such interventions discourage the inaccurate use of government statistics by members of the government.
Conclusions
The 'Johnson affair' may have only had political relevance for one weekend, but it is much more typical of the day-day activity of the UK Constitution than is often realised. The arguments about the role of the UK Statistics Authority are also ones that are becoming increasingly familiar in British political debate. In this period of political and constitutional turbulence, we can anticipate more barbed attacks on the constitutional architecture, but should also embrace the legitimate challenges that they raise for defenders of the 'checks and balances' model of the constitution.
Whether the activity of unelected accountability institutions is effective or not; or whether they are a good use of public money; or whether they perform a role better left to the raw political discourse of the Parliamentary chamber, the press and social media - are all questions that should be regularly asked. In a robust Parliamentary constitution they are also ones that should be resolved through standard accountability channels, in particular through the oversight of Parliamentary select committees.
