Month: December 2021

“We do not recognise…” – on the increasingly popular evasive phrase used by government press offices

3rd December 2021

One of the joys of dealing with press officers is their insincerity.

They know they are being insincere and evasive, and you know they are being insincere and evasive.

But they are in their role, and you are in yours.

One of the increasing common formulations adopted by press officers is “We do not recognise [x]”.

The phrase is not a denial: it is not being stated that [x] is false.

Nor is it, of course, an admission.

It is something in between.

In this way the phrase is like “We do not admit” used by civil litigators – though in litigation you should only use that phase if the fact is actually outside of your knowledge, even if you do not accept it to be true.

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“We do not recognise [x]”.

So an alleged thing may be true and unwelcome – but a spokesperson has managed to find something about the thing alleged which means they can avoid admitting it without denying it.

https://twitter.com/davidallengreen/status/1466708215983398913

As a lawyer, I would just then want to ask “well, what do you recognise to be the case?”

Though so deft are press officers at their insincerity and evasion that this clever follow-up will also no doubt be dodged.

And so we have this phrase – joining the likes of “we do not want to get into speculation” and “we do not give a running commentary” – as a means by which government press officers pretend to you (and perhaps to themselves) that there a good reason for not providing the information or confirmation requested.

The shame of it is that government press officers are (or should be) public servants.

The provision of information to the press and the public, in the public interest, is what they are actually being paid to do (and for which many will get civil service pensions and even gongs).

Yet they seem to to take pride in not serving the public interest but the political interests of current ministers.

This uncomfortable truth should be stark and glaring to those who work in government press offices.

But they do not see it.

Perhaps they do not recognise it.

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Abortion, law and policy – why there needs to be a constitutional amendment

2nd December 2021

The abortion issue is about one ultimate question: who gets to choose?

Is it those who are pregnant?

Or is it those who have control of a legislature or the courtrooms?

From a liberal perspective, the answer is simple.

As far as possible, those who are pregnant should have the choice to decide to terminate or not terminate their pregnancies.

This is because of the principle of autonomy.

But many do not want women to have that choice: they believe it is a choice for others to make, who do not know the woman or her circumstances.

Answering this ultimate question, however, is not enough.

For there is a further question: how should the right of someone to control their own pregnancy be enforced?

In the United States, the Supreme Court in Roe v Wade held that there was a ‘constitutional right’ to an abortion.

The problem with this is that the constitution of the United States does not expressly provide such a right.

It instead has to be read into the constitution by the courts.

And what a court can give, another court can take away.

Another problem is that the reasoning in Roe v Wade is not that compelling – even it arrives at the (morally) right conclusion.

So there is now a case before the Supreme Court where there is a very real chance that Roe v Wade will be severely limited, if not overturned.

This would be an illiberal and unfortunate outcome.

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For nearly fifty years, however, the effect of Roe v Wade has not been converted into an actual constitutional amendment, so as to put the ‘constitutional right’ beyond doubt.

And those opposed to abortion have, step by step, judicial appointment by judicial appointment, increasingly positioned themselves to overturn the decision.

It has been skilfully, deftly done – and in plain sight.

The judicial appointments under presidency of Donald Trump has made the shift irreversible for at least generation.

The only liberal way forward is not to litigate, but to legislate.

The ‘constitutional right’ of a woman to, as far as possible, decide the outcome of her own pregnancy is too important to rest on a flimsy Supreme Court decision, with poor reasoning and relying on a right not expressly set out in the constitution.

And if and when the constitution expressly sets out the right, then the decision as to who gets to decide whether to terminate a pregnancy will be, as afar as possible, back with who it should be.

The mother herself.

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How if a business issued the government’s “40 new hospitals” guidance it would be acting unlawfully

1st December 2021

The current government makes much of its manifesto promise that it will build ‘forty new hospitals’.

But at prime minister’s questions today, the opposition leader referred to the following guidance for public officials (or ‘playbook’ as it is formally described):

So a ‘new hospital’ includes an additional new clinical building where there is an existing hospital.

And even the refurbishment (or upgrade) of an existing hospital, as long as it looks different from the outside.

Both of these are jolly good things to be welcomed, but no sensible person would call them ‘new hospitals’.

Yet the government is requiring public officials to say this untruth.

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What if a business did this to consumers?

The Consumer Rights Act says things have to be as described.

Regulation 5 of the consumer regulations provides that an unfair commercial practice includes when a practice ‘in its overall presentation in any way deceives or is likely to deceive the average consumer in relation to…the quantity of the product’.

That reference to ‘overall presentation’ means that something hiding in the small print is not good enough as a legal escape.

If a business made such claims to a consumer then the law would regard this as ‘a misleading commercial practice’ and in breach of consumer protection rights.

Even without consumer law, claims that a major thing would be ‘new’ when it would either be merely an addition or a refurbishment would be likely – under general contract principles – to be either a misrepresentation that would mean the contract would be put aside or a material breach of a contract.

Indeed, some would go further and say such knowingly misleading statements in would even constitute fraud.

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The reason why these false claims are to be made so that it will appear that the governing party has met its own political manifesto commitment – and note how the manifesto itself distinguishes between upgrades and new hospitals:

‘Everyone in the UK should have the peace of mind and confidence that come from world-class health care – and so this new One Nation Conservative Government is giving the NHS its biggest ever cash boost, with 20 hospital upgrades and 40 new hospitals […]’

‘[…] have begun work on building 40 new hospitals across the country , as well as investing in hospital upgrades […]’

‘We will build and fund 40 new hospitals over the next 10 years. This is on top of the 20 hospital upgrades announced in the summer […]’.

Three times the promise is explicitly made in the manifesto.

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Of course, law is not politics, and political language is not to be held to legal(istic) standards.

But.

It is rare to have official guidance – even if called a ‘playbook’ – which sets out how public officials are to describe something falsely as a new hospital when it is not a new hospital.

Not only are ministers lying to us, but ministers are now requiring public officials to lie too.

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