Why the Truss “lettuce before action” is worse than you thought – and it has a worrying implication for free speech

17th January 2025

Before we start, the “lettuce before action” (for “letter before action”) line has been taken from the estimable Paul Magrath, whose weekly legal email is a must-read.

I really wish I had thought of the line for last week’s post.

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The post last week provided a quick close reading of the gloriously bad libel letter sent on behalf of the former Prime Minister Elizabeth Truss to the current Prime Minister Keir Starmer.

That post was done at speed: I wanted to respond to what the letter actually said, before I was aware of what others said it said. This is always the best way of engaging any formal document: work out what you can from reading the text yourself, before seeing what others tell you the text says.

This approach has its advantages – and also its disadvantages, not least that one can miss things others will see.

There was also the problem I did not then have access to the second page – though it was fun to speculate what could be on that second page.

This is now a more considered post, adding to the points made in the first post (which I think stands quite well), with the bonus of what seems to be the second page.

And for the reasons set out below, there is a worrying implication in the letter in respect of free expression. This is perhaps odd coming from a politician who often emphasises her free speech credentials.

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First, here is the full letter with what appears to be the second page (which has been taken with thanks from here):

 

 

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The second page, which I speculated must have contained all what was missing from the other pages, in fact adds nothing substantial to the letter.

Here it is again:

But, for completeness, the second page tells us that the words complained of were not said in parliament and so there is no issue of the absolute privilege for what is said in parliament (paragraph [7] and the footnotes to paragraph [4]).

And Paragraph [9] somehow manages to weaken what is already a very weak letter.

We already knew that this was a “cease-and-desist” letter that somehow did not set out what would happen if the recipient did not cease and desist. Paragraph [9] now sets out the sender is not even demanding a legal remedy at all.

In litigation terms, paragraph [9] should have instead been in an accompanying “without prejudice” proposing an offer for a compromised outcome. But for some reason it was included in, and thereby undermines, the “open” letter that would be placed before the court when the matter came to trial. It is a strange inclusion in such a letter.

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As set out last week, this libel threat is poor.

It is perhaps the weakest libel threat ever sent by an English law firm.

That said, it is in my view just about within the scope that a law firm could properly send, given very precise instructions.

But those very precise instruction would have to be to the effect of “send the weakest litigation letter you can”.

And so for that reason, I am not making a point of mentioning the law firm.

We should not visit the sins of a client upon a lawyer, and Truss – like you and me – is entitled to legal representation.

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Now are some further, more considered observations on the letter.

Notice the bulk of the letter is concerned with the appended expert’s report, including – impressively – a paragraph [16] with seven(!) sub-paragraphs.

This bulk makes the letter rather lop-sided.

The “legal” bits of the letter are nowhere near as detailed as the “economic” bits.

The impression this gives is that the origin of the letter was probably this report, which was then given to lawyers with the instruction of somehow building a legal letter on top of it.

The letter was thereby likely to be a device for promoting the content of the report, which it certainly did.

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And this then probably explains the existence of this letter.

As was set out last week, it is an utter failure as a libel threat.

Although – with a squint – one can see that it just about meets the requirements of a legal letter, it is plain that was not its purpose.

(And perhaps one error last week was for this blog to treat it earnestly, on its own terms, as a legal letter.)

It is not a serious legal document, but a political and media document.

And contrary to the “Private and Confidential” marking on its front page, it would appear that the intention of the client (if not of the law firm, who would have no control of the matter) was for it to be leaked and published.

That this is the case is further evidenced by the circulated version being unsigned.

For while some legal letters are not signed, and there is no strict requirement for an “ink” signature as such, it is also often the case that the client copies of correspondence are also not signed, just the letter which is actually sent.

It would seem that the letter must have been leaked either by the client or someone in her circle.

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As regards the expert report, a number of commenters have focused on the identity of the expert.

But it does not matter if the economist’s report on which the letter was relying was by John Maynard Keynes or Adam Smith.

It made no sense to rely on an expert’s report in respect of facts which the same letter also said were “clear”.

That is not what expert’s reports are for in civil litigation.

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And now we come to the possible implication of the letter for free expression.

Reading the letter as a whole, including the now non-missing page two, the threat made against the Prime Minister could be made by her against any person at all who said the words complained of.

There is nothing in the letter which would limit the alleged liability to the Prime Minister for saying those words.

Generally libel is blind to the identity and motives of the person who “publishes” the words – in this case says words reported in the media.

The framing of the letter is such that any person who published the words complained of would be liable to Truss for general damages.

The letter is addressed to Starmer, but it describes a claim Truss could also make against world.

Fortunately this letter is so hopeless that nobody will end up with legal liability.

But the premise of the letter is an extraordinary widening of legal liability for political speech, catching many political speech-acts on social media and other published media which most be people would assume was part of their everyday free speech in criticising Truss for what she did with the economy.

Given that the sender often promotes her belief in free speech, this is perhaps further evidence that the content of this letter was not really thought-through by Truss, beyond being the means of widely circulating a certain favourable (but probably legally inadmissible) report.

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The Prime Minister gave what must be the most appropriate response to this letter in PMQs on Wednesday.

“I got a letter this week from a Tory voter in a Labour seat.

“I hope that they do not mind me saying who it was—it was Liz Truss.

“It was not written in green ink, but it might as well have been.

“She was complaining that saying she had crashed the economy was damaging her reputation.

“It was actually crashing the economy that damaged her reputation.”

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There has been no announcement of any formal reply by Starmer to the letter, which is not surprising given the letter did not ask for a reply, still less (remarkably for a supposed cease-and-desist letter) demand any undertakings, and the letter also did not include any deadline.

Truss, however, seems to want to have the last word.

On X (previously Twitter) she responded to the Prime Minister’s jibe:

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Here, if Truss sincerely thinks accusing someone of crashing the economy is defamatory (subject to any defences), then she is with her “closer to home” comments herself defaming someone else in turn.

But at least she put “cease and desist” letter in ironic quotes.

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Politicians and others (and their lawyers) should always be careful in using any litigation documents – from letters before action to third party submissions – for the purposes of publicity.

Judges certainly do not like it.

And if done badly, you also end up looking very silly.

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At Substack, last week’s post on Truss has now overtaken the post on Taylor Swift to become the second most popular post ever published on that blog.

And this is fitting in a way.

For an alternative title for this post could have been: “Litigation (Liz Truss’s Version)”.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Of Indictments and Impeachments, and of Donald Trump – two similar words for two distinct things

16th January 2025

Over at Prospect, for this my “weekly constitutional” post I have done something on why the ultimate fault for Trump not being held to account for what he did on 6 January four years ago is not with the failed, now effectively out-of-time prosecution, but with the fact it was not dealt with properly by the Senate when Trump was impeached.

This was something which should have been dealt with by impeachment, not indictment.

It was the wrong i———ment word.

This is not to say there are not problems with the prosecution, and I mentioned some of these in a post here a couple of days ago, when the special prosecutor’s report was published.

But.

Even taking the prosecution at its highest, it was wrong tool for the job.

When the Senate acquitted Trump over what he did on 6 January 2021 and so did not disqualify him from office (a political and not a legal sanction), all else followed.

What Trump did on 6 January 2021 also fitted various general criminal offences according to the published report, but that was incidental.

It was essentially a political wrong – and so it should have been dealt with by political means.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Why did the DoJ prosecution of Trump run out of time?

14th January 2025

How was Trump able to time-out a significant prosecution?

The volume of the United States Department of Justice (DoJ) report dealing with the prosecution of Donald Trump over the event of 6 January four years ago has just been published.

It will take time to digest – and please note this blog is not written by an American lawyer.

But there is one key question that has to be asked of the report and the failed prosecution it details and describes.

And it goes to the last portion of the report:

“but for Mr. Trump’s election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”

This balanced CNN report from earlier this year provides informed views as to the delays, with defenders and critics of the DoJ process both quoted.

My preliminary view as a commentator on litigation matters is that the prosecution underestimated the effective lawyering of Trump’s advisers and also underestimated how the courts may go against them.

They had what seemed a one-sided litigation strategy – that is to say, not a meaningful litigation strategy at all.

If a party to a dispute has absolute control over events, it does not need a strategy.

A litigation strategy instead is needed so as to anticipate and deal with what the other parties can and will do, and what the courts can and will do.

Trump’s lawyers had a strategy of delay and obstruction – and it worked very effectively, at least with the federal prosecutions (though not entirely, of course, with the New York fraud prosecution, though they still ensured the sentencing there was too late so as to be meaningless).

Not for the first time, those who though they had the measure of Trump underestimated his sheer will for survival.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Spiteful governments and simple contract law, a weak threatening letter, and a warning of a regulatory battle ahead

13th January 2025

Some things from last week you may have missed.

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The weekly constitutional

Last week I expected my blogging to centre around a post I was preparing for Prospect, where my regular contribution is to branded as ‘weekly constitutional’.

This pleasing badge implies a weekly meander – but it will be one based on a recent (or non-recent) published case report. The aim is to use that judgment or other decision to show how law and action work – and do not work – in practice.

The first ‘weekly constitutional was about a significant United Kingdom Supreme Court decision that was handed down in November but which got almost no press attention (the main honourable exception was in the estimable Byline Times).

In the unanimous decision the Supreme Court justices undid a grossly spiteful attack by the then coalition government on public sector trades unions not by resorting to elaborate employment law provisions, but by applying a contract law rule so simple it is the stuff of the first weeks of any law degree.

I liked doing that post – please read it here – and I hope you will follow the ‘weekly constitutional’ post. I will post here and alert you to them, perhaps expanding on certain points.

But that post got rather drowned by the attention received by two other things that I wrote last week.

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‘Lettuce before Action’

I so wish I had thought of the above line, but it was coined by the peerless Paul Magrath, whose weekly law email is a must-read – you can subscribe here.

This is about, of course, the antics of a former Prime Minister – and indeed a former Lord High Chancellor – in sending a legal letter to the current Prime Minister.

A letter so weak it may well be the weakest threatening letter ever sent by a United Kingdom law firm.

The ‘close reading’ post I did – here – was done very quickly and promptly, and indeed so promptly that I even had to set out why as a matter of copyright and confidentiality I was entitled to publish the letter so as to comment on it.

Since the publication, the former Prime Minister has been widely ridiculed for this misfired missive – but I think there may be something more worth saying about the letter – and so I may do a post with further reflections.

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Back in the salmon pink

Last week I was also invited to write something about about social media regulation for the Financial Times.

It is always lovely to write for what – in my biased but honest opinion – is the best newspaper, though it is always terrifyingly daunting to be published alongside proper commentators.

(Lucy Kellaway is my all-time favourite columnist in any newspaper anywhere.)

So I wrote one thing, about the inherent difficulties about regulating social media – some of which will be familiar to long-term readers here.

And is often the case, new ideas come out once you actually start something, and so I wrote a second thing about what I say as the rational drivers behind what Meta announced last week. This was based on actually listening carefully to what Mark Zuckerberg has said in his broadcast – and then reading that prepared statement even more carefully (which led to the all-important satisfying “Aha!” moment).

The two pieces were then banged into one longer piece with an overall, hopefully coherent structure.

And the resulting ‘essay’ was published in the print edition and online on Saturday.

For reasons of topicality, more than the quality of the writing, the piece became very popular.

The Bluesky stats for the article matched my Brexit posts on Twitter at the height of Brexit when I had five times as many followers.

The piece was even briefly one of the top five read FT.com pieces globally.

The sensation of this happening is not altogether pleasant.

But perhaps the one merit of the piece was that it offered an explanation for something which seemed otherwise hard to explain in rational terms.

Essentially the argument offered by the piece was:

(a) Meta has an interest in switching to a more confrontational approach with irksome foreign regulators, especially in the European Union,

(b) Meta now has an opportunity to do this because of the reelection of Donald Trump to the United States presidency,

but (c) this does not show strength but weakness, for in those foreign jurisdictions, the platforms know the respective state has the ultimate power of legal recognition.

And so this is why Meta now needs a strategic ally in the US government – and everything else follows from that.

This seemed obvious from Zuckerberg’s statement – but because it was slipped in a point number six after five rather attention-grabbing other points, but did not get the attention it should have had.

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Litigation and regulatory strategies are fascinating – in particular, where the surface theatrics of impulsiveness, hypocrisy and recklessness misdirect onlookers into thinking the underlying commercial (or political) objectives are similarly irrational.

Even Liz Truss’s letter makes sense – but solely from a political-media perspective, and not any legal perspective.

Perhaps I should write that further piece on that letter, if only to use that ‘Lettuce before Action’ line as a title.

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A close look at Truss’s legal threat to Starmer – a glorious but seemingly hopeless cease-and-desist letter

9th January 2025

How the lore of New Year defeated the law of New Year – how the English state gave up on insisting the new year started on 25 March

New Year’s Day 2025

By the mid 1700s in England there was a curious juxtaposition between the lore of New Year’s Day and the law of New Year’s Day.

The legal system, the government, the established church, and business: all insisted that the year began on 25 March – Lady Day.

That would be the date on which, say, 1748 would become 1749.

This sort-of-made-sense for many reasons.

It would make the month beginning with ‘Sept’ the seventh month, and the month beginning with ‘Oct’ the eighth month, and so on.

It also meant that years began in spring, rather than in midwinter (bleak or otherwise).

It accorded with the conventions of business and legal transactions – and even today 25 March is one of the quarter days on which certain debts become due.

(Also at this time, Acts of Parliament and other legal instruments were usually dated by regnal years anyway.)

And it even fitted with the Christian year, for the feast of Annunciation was a good time to get spiritual things going for a new circuit of the sun, with Christmas then neatly coming nine months later.

Linguistically, legally, administratively, commercially, spiritually – everything pointed to 25 March being the start of the year.

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But.

There was a problem.

And the problem was that people ignored what they were supposed to think, and carried on celebrating the new year on 1 January anyway, as they had done since time immemorial.

Even within the court and the corporations – as Ronald Hutton details in his great book The Stations of the Sun – they privately celebrated the new year on 1 January.

There was thereby a tension – indeed a contradiction – between the lore of new year and the law of new year.

This, in turn, had practical problems.

As A. F. Pollard explains in this informative 1940 paper, wills and other legal instruments affecting normal people often had date errors, because what people believed to be the new year contrasted with the official position.

(It also meant problems in respect of dealing with Scotland which had sensibly moved to a 1 January start date back in 1600.)

It did not matter what the church and parliament and the crown and the courts said, people persisted in acting as if the year changed on 1 January.

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And so in 1750 the church and parliament and the crown and the courts gave up.

An Act of Parliament was passed switching the start of the year to 1 January:

The Act had this wonderful preamble:

“Whereas the legal Supputation of the Year of our Lord in that Part of Great Britain called England, according to which the Year beginneth on the 25th Day of March, hath been found by Experience to be attended with divers Inconveniencies, not only as it differs from the Usage of neighbouring Nations, but also from the legal Method of Computation in that Part of Great Britain called Scotland, and from the common Usage throughout the whole Kingdom, and thereby frequent Mistakes are occasioned in the Dates of Deeds, and other Writings, and Disputes arise therefrom […]”

This was also the Act which switched the English calendar to the Gregorian calendar, omitting the days from 2 September to 14 September 1752.

(See what you can do with Acts of Parliament. Just as powerful on matters timey wimey as any Doctor Who scriptwriter.)

Lore had prevailed over law: what people believed and practically understood to the case forced the official position to yield.

Law can only conflict with lore for so long.

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Happy new year to all the followers of this blog, and thank you for your support.

Some of President Carter’s judges can still judge, 44 years later – and so we can see how long Trump’s new nominees will be on the bench

New year’s eve, 2024

The former US President Jimmy Carter, who has just died, left office in January 1981 – just under 44 years ago.

Yet one of his many bench nominees was still actively serving as a federal judge as recently as 2021:

And that list also indicates that about 29 of those judges – while not on active service – have the semi-retired “senior status” and so can still serve as judges if required.

This shows the significant lingering power of every US President on the shape of the judiciary.

A 100 year-old president former president has died who left office over 40 years ago, and yet his appointments can still decide cases.

Bringing this around to today: the newly re-elected Donald Trump and the Republican Senate will be appointing a raft of young conservative judges to the judicial benches, in addition to those which were appointed during his first term.

And some of these will still be judging (or able to judge) in 40 or 50 years – long after many of you reading this post may be here.

The lingering effect of the two Trumpite moments will last for political generations. Some appointed judges may see out ten or more presidential terms and still be judging.

And judicial time limits are now more unlikely than ever: Trump and the Republican senators have no interest whatsoever in limiting the enduring power of their nominees. And presumably as and when (or if) the Democrats ever regain power, they will have no interest in limiting the terms of their appointees.

This is a practical effect of how what some say (or hope) may only be short-term political surges can have consequences that will last decades.

(See also: Brexit.)

We are not dealing only with the politics of the here and now, but about the law and government of the hereafter.

Perhaps things will one day get better for liberals and progressives.

Perhaps.

But it is going to be a long haul.

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Happy new year to the readers of this blog.

Thank you for your ongoing support.

There is going to be a lot to write about in the new year – and I am also going to explore the law and policy of AI, following my Candlemas story.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

“Twelfth Night Till Candlemas” – the story of a forty-year book-quest and of its remarkable ending

The day before the Winter Solstice, 2024

An argument about Assisting Dying – matters of life and death need to be properly regulated by law, and not by official discretion

28 November 2024

The illiberalism yet to come: two things not to do, and one thing to do – suggestions on how to avoid mental and emotional exhaustion

The new Republican presidency-congress in the United States as well as developments in other countries mean that in addition to the illiberalism we have had so far, there is more – perhaps worse – to come.

So how should liberals respond?

Here are three suggestions, humbly put forward.

1. Do not respond, if you can, to catastrophism. You are going to think how bad things can be, and will project this on to the other side. You will then react to what your mind has conjured up. Even if those projections are plausible, this will exhaust you quickly. You will have little energy or focus left for what they do come up with.

2. Do not respond, if you can, to what the illiberals say they will do. They will goad you and frighten you, as they enjoy “owning the libs”. They like the sound it makes, the reactions they can get. Again, even if these threats are plausible, reacting to each bare threat will exhaust you quickly. You will again have little energy or focus left for what they do come up with.

3. Respond, if you can, to what they actually do – not what you fear they will do, or even what they say they will do. What they actually will do will be bad enough, and will need your energy and focus. The illiberals will hope – and expect – that all the noise and fears under (1) and (2) will mean that by the time they do put measures forward, they will have little opposition.

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As Margo Channing in All About Eve said, we are are in for a bumpy ride.

We don’t need to make it even bumpier for ourselves.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.