Pints, cake and retrospective justice

#Partygate is the scandal that keeps on giving.  In a bid to distract from their own troubles, the Tories have tried to put the focus on an incident during the local elections last year where Keir Starmer was videoed drinking beer in Durham.  Their claim is that the leader of the opposition was also in breach of rules.

The story has been given fresh legs by two things. First, it has now been confirmed that the deputy leader Angela Raynor was also in attendance despite previous denials and secondly an MP has written to the Durham police with a Freedom of Information Request. The police response has led to claims that this means they are about to re-open investigations.

That suggestion is, on a reasonable reading of the police response erroneous.

It is clear from the letter that they are not intending to re-open investigations but rather, are simply making enquiries of the investigation team in order to better respond to the FOI request.  Durham police have consistently made their position clear that they do not intend to retrospectively fine people for COVID offences.   Lest we see this as political bias, it is worth noting that this is consistent with their response to Dominic Cumming’s visit to Barnard Castle at the height of lockdown. We will come back to their approach later which is in fact the primary point of this article.

However, at this stage I want to note one of the issues about politician’s morality and why generally speaking they are cautious about turning moral misdemeanours into party political campaigning matters – although they’ll push things as far as they can and rely on the media to do their dirty work for them.  The issue is that the political world is representative of the wider population and so it is no surprise to find people of particularly questionable morality among them.  This is true across the spectrum.

That’s why when there’s a particular focus on sleaze and corruption whether that’s taking money from lobbyists or dodgy expenses we tend to find out after a while that all parties are complicit. However, understandably, it tends to be the party in power that takes most of the heat and the blame. I think we are seeing that at the moment. A Tory MP is under investigation for watching porn during a committee meeting whilst a former Labour Cabinet member has been suspended for bullying.  Several frontbenchers on both sides are allegedly under investigation for sexual harassment.

Incidentally, none of this allows for excuse.  It is no good to say “well this is just what people are like” or “the others are at it too.”  Those kinds of behaviour remain examples of sin but also examples of lawlessness and would lead to dismissal from any other workplace. They should too lead to disqualification from public office if the accusations are proven true.

Returning to #Partygate or more specifically #Beergate, I find it fascinating that exactly the same line of defence has been used by Labour as the Conservatives deployed.  The defence has been :

  • That the police have concluded that there was nothing to investigate. The Met had similar made a prior decision not to pursue the Downing Street parties which they then reversed as details of Sue Gray’s report emerged.
  • That people were not present/did not recall being present. Incidentally, MPs do seem to struggle with their memories. Boris and Rishi needed Sue Gray’s investigation to tell them what they’d attended and the MP accused of watching porn thinks he may have done so accidentally but needs the investigation by the standard’s committee to confirm this to him!
  • That it wasn’t a social event but was part and parcel of work.

And here is why I think that the Durham police stance is right and where the Met got it wrong.  The COVID regulations introduced strict liability for breaches. This meant that the police were able to issue on the spot fines. Strict liability means that the police are only interested in the obvious facts as they appear on the day.  They aren’t interested in your level of ignorance, they aren’t concerned about your intent, they simply determine that an action has happened which goes against the specific law.

I remember at University that there was a heavy push for a move to this kind of strict liability, particular around things like Environmental Law.  I guess that you can see the benefits of such an approach.  You don’t want to get into complex legal wrangles with corporations about their knowledge and intent or nuanced interpretation of the law. You simply want to know what damage has been done and get someone to pay for it. You also want to put deterrents in place which force people to think about what they do.

Similarly, when we are looking at things like drink driving or speeding, on the spot decisions that don’t lead to a criminal record mean that the rules of the road can be enforced.

However, this doesn’t tend to work so well when we start to look back into the distant past -when we are looking retrospectively.  In such a situation we are having to gather evidence, listen to witnesses and therefore listen to the suspect’s defence. You see, evidence is open to interpretation. To be sure, there may be photos and video clips but these can be misconstrued.  Yes, you may have a photo of Boris with a cake and one of Keir Starmer with a beer but there may well be a tangible difference if as is claimed, that the former event was pre-arranged and the latter was not. 

The problem with retrospectively applying fines is that you turn one body – the police into investigator, prosecutor, judge and jury.  In the middle of #Partygate with all of the discussion about whether the PM is a liar and whether or not the rules were harsh or necessary, there seems to be little interest in this particular slippage away from good law.

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