Portfolios and kisses

Last week’s cabinet reshuffle marked a return to the good, old days of the Blair regime, the allocation of government jobs designed to celebrate the various Labour factions' decision to kiss and make up.

The reshuffle saw Peter Mandelson, New Labour’s own Machiavelli, hurriedly brought back from Brussels for his alleged ingenuity in economic concerns. It also saw several other similar characters ennobled or promoted to important cabinet jobs.

Geoff Hoon, a politician much beloved by the armed forces, was appointed Secretary of State for Transport, taking over from Ruth Kelly who had left the political scene in a rush. Lawyer by profession and quite flexible by nature, Mr Hoon is expected to deal with the DfT problems in a more expedient and craftier fashion.

The Department for Transport also witnessed John Prescott’s good friend, Rosie, bartered in exchange for his former loyal attendant, Paul Clark [*] - thus allowing old Mr Prescott to keep his chubby index finger on the DfT’s pulse.

The ends justify the means, the Prime Minister might have thought in his desperate struggle to remain in power.

But is this really an effective approach?

In situations like this, we fear, the ends can be quickly forgotten and the questionable means, chosen to attain them, turned into ends in themselves. And, having forgotten where it all started and what for, those means could then easily become institutions.

Or, have they already become that?

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[*] Just like Jim Fitzpatrick, the other Parliamentary Under Secretary of State at the Department for Transport, appointed in June 2007, who was once a junior minister at the Office of the Deputy Prime Minister

The sure thing

In our post of 20 August 2008 we revealed the content of a Freedom of Information request that had been sent to the Department for Transport and the response received from them. This response confirmed that “no specific technical justification [of the Secretary of State’s decision not to re-open the FV Gaul Investigation] recorded in any form” was held by the DfT.

Consequently, we sent back a reply and also lodged another FOI request asking the Department to provide us with “a full account of the reasoning (of whatever kind and however held or expressed) behind the Secretary of State’s decision not to re-open the Gaul Formal Investigation)”. (See the full text at this link: http://www.whatdotheyknow.com/request/justification_for_the_decision_n.)

The deadline for Mrs Kelly’s reply was 9 October 2008 and we were waiting with feverish anticipation for the arrival of that day, knowing that, whatever faults Ruth Kelly might have had, dishonesty was not one of them.

Alas, Mrs Kelly is to quit her post before that date. Who the next person to take over this 'poisoned chalice' will be, it is not yet known, but his/her identity, when revealed, will provide us with a clue as to whether the Prime Minister wants the cover-up to continue (and whether indeed he has a stake in it), or whether things will finally be resolved in a correct and honourable fashion.

So far, those with an interest in keeping the scandal under wraps have been quite lucky. But – as an old maxim warns us - the only sure thing about luck is that it changes.

Ruth Kelly

Mrs Ruth Kelly, it has been announced, is to quit her post of Secretary of State for Transport. The reason given for her departure was "spending more time with her family". Family and high-powered politics must be difficult to reconcile, we imagine.

Also, we hear, she had strong feelings about the government's position on the Embryology Bill.

In respect of what we are mainly concerned with - the FV Gaul Investigation - the Secretary of State for Transport found herself caught, once again, between a rock and a hard place.

Perhaps Mrs Kelly owed too many loyalties and they were all conflicting. No one can really serve more than one master, at the same time.

Anyway, we wish Ruth Kelly all the best for the future, and hope we haven't caused her too much offence.

The limits of reasoning

On the 4th of July, we lodged an FOI request with the Department for Transport, asking them to provide us with the reasons and technical arguments underpinning the Secretary of State’s earlier decision not to re-open the Gaul investigation on the basis of our disclosures.

(You can see the full exchange of correspondence at this link: http://www.whatdotheyknow.com/request/evidence_
undermining_the_results)

The DfT eventually sent us their reply in which they stated that the Secretary of State’s decision “fully sets out the Secretary of State’s reasoning in relation to the re-opening of the investigation” and that the DfT held “no specific technical justification [of that decision] recorded in any form”

The Department’s statement, short though it is, is pregnant with implied meaning.

Thence we found out that our disclosures and technical arguments made over the past two years have washed over the DfT like water off a duck’s back. This is an admission by the British government that concrete evidence, invalidating the results of a public inquiry, was not considered as required by law. (See also our post of 12 July 2007)
This, of course, is understandable since the Department know damn well that the outcome of the Gaul RFI represents a miscarriage of justice, without having to review our evidence. The officials’ obstinate non-engagement with the subject is their way of maintaining the deceit without getting themselves ensnared by their tongues.

Their claim that the Secretary of State’s decision “fully sets out the Secretary of State’s reasoning in relation to the re-opening of the investigation” is already hazarded, and so untrue as to make it laughable.
Given that the response previously received from the Secretary of State only mentions that “the Department is satisfied that there is no reason to doubt the outcome of the expert analysis that led to the Re-opened Formal Investigations conclusions and consequently there is no reason to re-open the investigation”, the DfT’s latest statement can only be taken as a crude parody or as a blunt admission that this is, actually, as far as the Secretary of State’s reasoning powers normally go.

Yet, through its very brevity, the DfT’s reply provides us with further confirmation that the decision not to re-open the Gaul RFI was unlawfully taken and politically motivated.

Pressure Sores

The newspapers have recently informed us that "irresistible pressures” ended an investigation by the Serious Fraud Office into alleged high-level bribery and corruption. In the strange WMD intelligence dossier case, as well as in several other notable affaires, the same sort of pressures seem to have played their part, blocking inquiries or driving them towards a convenient, pre-ordained outcome.

These histories bring to mind the “pressures” applied on the protagonists in another failed governmental investigation: the 2004 Gaul RFI. I recall now that, following the publication of the Gaul RFI final report, a participant in the formal investigation commented that the Wreck Commissioner (justice David Steel) seemed to have his own agenda when probing the reasons for the tragedy; the implication being that outside “pressures” might have weighed upon His Honour more than the available evidence and testimonies.

Having tried for almost two years now to have the conclusions of the 2004 RFI re-examined, we have realised that the bodies responsible for dealing with the concerns that had been raised also seemed to be under some kind of nocuous “pressures” from which they couldn't escape.

Pressures, as we know from the laws of physics, can be harmful to a body when they outbalance the body’s ability to stand firm. Therefore, so as to prevent injury to our public bodies we must either restrain these terrible forces, or, somehow, invigorate the former’s ability to resist and respond.

Love to know

In January this year, Mr Chris Huhne, LibDem MP for Eastleigh, asked the Secretary of State for Transport, “whether she and her predecessor have met (a) Mr. David Abrahams and (b) representatives of Mr. Abrahams' companies since 2004”.

The answer to Mr Huhne’s question was delivered by Jim Fizpatrick, Parliamentary Under-Secretary at the Department for Transport. From him, we learned that “the Secretary of State and her predecessors have not attended meetings in their official capacity since 2004 with Mr. David Abrahams or representatives of companies registered to Mr Abrahams.”

Being rather curious by nature, we couldn’t help wondering why his reply made particular reference to potential meetings between Mr Abrahams and the Secretary of State for Transport/her predecessor in her/his official capacity.

How about unofficial encounters?

The broken pact

In our post of July 12 2007, we explained that, according to the 1995 Merchant Shipping Act and the 2006 Fraud Act, the Secretary of State for Transport would be likely to commit the offence of fraud by abuse of position, if she did not order a re-opening of the Gaul Investigation in the light of the evidence we presented.

Six months have passed since and, having failed to take appropriate action or to provide any reasonable justification, not even a word, in support of her decision not to re-examine the case, Mrs Ruth Kelly, currently at the helm of the Department for Transport, appears to be either ill-advised or consciously in breach of the law.

As Lenin and his associates used to dismiss the law as bourgeois sham, the New Labour regime shows a similar contempt for legality, though not so much for ideological reasons, as out of recklessness and a lack of ethical commitment.

The significance of the rule of law in the survival of a democracy is not a complicated concept to appreciate – it guards against tyranny and holds society together. When the political power applies the rules discriminately and self-interestedly, the tacit pact between society and the state - which, in the end, gives the law its legitimacy - is broken.

The New Labour government, however, doesn’t seem to worry too much over these consequences.

Cultivating detachment

Our press release (see the post below) seems to have, to some extent, flooded the Internet. Why, we didn’t really foresee that...

Anyway, we now ought to go back to the first pieces in the Gaul RFI domino chain - the Department for Transport.
Next week we will be celebrating two months since we first asked the Department for the names of those elusive in-house technical experts who, allegedly, advised the DfT not to re-open the Gaul investigation. (See our posts of 13 November and 31 October.).

Given that to act is inconceivable and not to act is unfeasible, the latest message from the head of Shipping Policy unit in the DfT, delivered cautiously via intermediaries, was that we should continue waiting.
Now, it appears, is not a good time to have our curiosity satisfied. The omens look unfavourable to the government for the moment.

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“The Government is urging all the citizens of the big towns to cultivate detachment. According to this, it’s our last hope of finding an answer to the economic crisis, the confusion of the spirit and the problems of existence.” Eugène Ionesco, Victims of Duty

The closed system

“The Department is satisfied that there is no reason to doubt the outcome of the expert analysis that led to the Re-opened Formal Investigations conclusions and consequently there is no reason to re-open the investigation,” says the message sent to us by the Department for Transport on 8 October 2007.

So, the DfT are still proclaiming their faith in the merits of the 2004 Gaul RFI which, it is no longer a secret, did not lead to anything, except injustice and frustration, driving the whole purpose of a formal investigation onto precarious ground.

“You have informed me that the technical report, related documents and information published on the following sites: http://the-trawler-gaul.blogspot.com and www.freewebs.com/inconvenientcitizen, had been viewed by technical experts within the DfT before your latest decision not to re-open the investigation was taken.
I would therefore be grateful if you could tell me who these in-house experts are.” We gently inquired the very same day.

Well, the DfT have, so far, been unable to give us the reply. They need, it seems, legal advice on how to answer the question.
Why take such precautions? We had only asked for the names of the experts involved… Is it because no in-house technical specialists have been in fact consulted? The DfT draw their technical expertise from agencies such as MCA and MAIB. These, as far as we know, have not yet been requested to advise the Department on any of the technical matters that had been raised... Is it because their advice might not be what the DfT would like to hear?

Anxious and unable to either refute our disclosures or renege the schemes of the previous administration, the DfT is therefore stuck, mindlessly repeating the same old line.

While it may first appear as bizarre, their attitude is quite explicable: the system created by our political regime cannot simply over-ride itself in order to correct the wrongs of that regime.

Inhabitants of a closed system, like the one described by the Michelson and Morley experiment, our government departments and their institutional dependants are, moreover, unable to observe the absolute actions of that system from the outside - trapped as they are within their own relativity, and so much preoccupied with self-preservation.

We've been here before

Following up from our posts of 5 and 9 September, and our recent correspondence with the Treasury Solicitors, we announce that we have been taken aback by the latest reply received from the TSol.

Rather than answering our questions or justifying their previous position (which is a shame because we would have loved to hear their answers), the Treasury Solicitors have decided, this time around, to abandon subterfuge, lay down their swords and wash their hands of the Gaul case, passing the responsibility for a final decision on the prospect of re-opening the Gaul investigation back to the Department for Transport.

Well, I am sure Mrs Ruth Kelly was grateful for that; after all the efforts she had made in order to avoid personal involvement, shielding herself with the bodies of various lawyers and civil servants, she is now back in the spotlight.

Unfortunately for Mrs Kelly, the duty to consider our evidence and decide on the necessity of re-opening the Gaul case does, indeed, rest with the Secretary of State for Transport. This is the law and there is no ministerial exception to it.

Hiding under the blankie

Twenty-three days have passed (i.e. way past the ten-day official deadline) since an email was sent to the Heads of MCA and the Department for Transport (DfT), raising the issue of the cover-up in the Gaul RFI, and there are still no signs of a reply.

The officials concerned are silent as birds at the end of the day. The MCA’s recently appointed CEO continues to be hard to catch, invoking pressing engagements and other similar pretexts. (His gofers have discreetly let the word slip that the implications of any review of the Gaul inquiry could be massive. It is possible, of course, that the implications of this case could be massive; but what may be more unfortunate, however, is that the moral stature of the people called to deal with them might turn out to be rather small. Who can tell?)

The DfT is not available these days either. Ruth Kelly has had to refer the complaint to higher fora, while the Shipping Policy branch in the DfT is quietly awaiting instructions from various ‘groups of lawyers’, who don’t seem to have any deadlines or even disclosable identities.

And no one else in the Establishment is daring enough to even mention the name of the Gaul - the ill-fated name that has covered us all in shame.

The sin of omission

Section 269 to the Merchant Shipping Act 1995 states:

“Where a formal investigation has been held under section 268 the Secretary of State may order the whole or part of the case to be re-heard, and shall do so —

(a) If new and important evidence which could not be produced at the investigation has been discovered; or

(b) If there appear to the Secretary of State to be other grounds for suspecting that a miscarriage of justice may have occurred.”

Apart from the more common or the vulgaris types of fraud: i.e. fraud by false representation and failure to disclose information, the Fraud Act quoted earlier on these pages (see our post of 17 March 2007) also defines a more genteel, standoffish, whiter-collar type of offence, which is the ‘fraud by abuse of position’: i.e. "the offence committed by somebody who occupies a position in which he is expected to safeguard the financial interests of another person, but who intentionally fails to do so, thus exposing that person to a loss or to a risk of a loss."

Further on, the Act explains: “a person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.”