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

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 a ‘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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