Author: David Allen Green

What does it mean to “take (back) control” of a border?

14th November 2022

Brexit, we are told, was about “taking back control” – of our borders, our money, and our laws.

Yet, if you read the news, it would seem the United Kingdom is less in control of its borders than it was before we departed the European Union.

It would seem that simply declaring that we were “taking back control” was not enough for us to, well, take control.

A less-than-a-moment’s thought should explain why.

It is difficult, if not almost impossible, to have absolute control of a border from one side alone, if a significant amount of people want to cross that border.

In extreme situations, of course, resorting to coercion and lethal force can give the impression of control, at least in the immediate term.

But for there to be effective and sustainable control of a border usually requires those on both sides to cooperate.

As such, the simplistic unilateralism of “taking back control” will not work in practice.

And it is thereby not surprising that the current home secretary has had to agree with France a form of cooperation about the channel crossings.

Though, as Zoe Gardner points out on Twitter, this is not the first time such a thing has been announced:

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Another misconception is that deterring those crossing the channel will work.

That one can remove the “demand”.

That by threatening people with flights to Rwanda or keeping people in horrible conditions the United Kingdom will somehow reduce the number of those seeking asylum here.

The demand seems, to further use economics jargon, “inelastic”.

All that appears to be happening is that, by using various hostile, inhumane and illiberal measures, is that the same number of people are still coming – but we are treating them less well.

The “push factor” does not seem to care about our unpleasant ways.

And there is little that the United Kingdom can do to directly address the “push factor”.

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So what we have are high significant numbers of asylum seekers.

[Word ‘high’ replaced, as some commenters complained it was misleading.]

What should be done?

Well, as Gardner further says, the dealing with the actual claims themselves should be the priority:

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What we can take control of is not our border – but our internal processes, and how well those processes are resourced.

That is what is within our control.

Anything else either requires sincere international cooperation or is outside of our or any other receiving country’s direct control.

And that is control we cannot take – either “back” or otherwise.

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Musk and the three ways his acquisition of Twitter shows a remarkable approach to legal risk

11th November 2022

The acquisition of Twitter by Elon Musk is fascinating – at least to watch from the outside.

*

I am not an American lawyer, and I have not seen any of the legal or other documents related to the acquisition.

Like many of you, I only know what I have read in the media and watched play out on Twitter.

But from the information available to me, and based on twenty years’ experience as an English commercial lawyer, there are three elements of this acquisition which may show us things about Musk’s approach to the issue of legal risk.

*

The first element is the agreement to purchase, which Musk reportedly sought to get out of.

It would appear that he was unable (or unwilling) to do so, and so had to complete the purchase.

There were two things here which seemed odd.

The first odd thing was that an experienced business person like Musk, who presumably had access to legal advice, could even get seemingly trapped by such an agreement.

The second odd thing was his use of issues such as the number of bot accounts as a basis to get out of the transaction.

It seemed to me that such issues would normally go to warranties than to anything more substantial.

(In this context, a warranty would be a promise that a certain state of affairs existed which would allow a cash adjustment to the purchase price if the warranty was breached – and so the ultimate price of the purchase would be adjusted to what it would have been had the correct state of affairs been known.)

The issues he raised did not appear to me to be convincing, and many better placed observers were not convinced either.

It looked like Musk had put himself into a commercial situation he could not get out.

Few business people, following advice, would have allowed this to happen.

It was a curious situation.

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The second element of this acquisition is the reported disdain for regulatory and other legal risks by Musk and his new managers once Twitter was purchased.

On this, the New York Times has reported:

Musk “was used to going to court and paying penalties, and was not worried about the risks”.

This is an extraordinary position for any experienced business person – but it does accord to his approach to risk as described in the first element above.

Some of the regulatory and other legal risks now facing Twitter are not trivial, from data privacy to employment rights.

The approach described by the New York Times is not even cavalier – it is outright denial and disdain.

What a curiouser and curiouser situation.

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The third element is the very structure of the acquisition.

Musk may be conducting himself online as if he were a buffoon, but those lenders and investors also financing the transaction are serious people.

And if for some reason those lenders and investors were easily impressed by a charismatic figure, their legal advisers certainly would not be.

The position of these lenders and investors here is the greatest puzzle of all.

What were they thinking?

Reuters tells us these are the lenders and investors:

Even if Musk was in denial or disdainful about legal or other risk, these lenders and investors would not be.

Again, according to Reuters:

“Twitter faces interest payments totaling close to $1.2 billion in the next 12 months on the debt that Musk piled on it, following a string of interest rate hikes by the Federal Reserve, an analysis of the financing terms disclosed in regulatory filings shows.

“The payments exceed Twitter’s most recently disclosed cash flow, which amounted to $1.1 billion as of the end of June, according to financial disclosures Twitter made before Musk took it private on Oct. 27.”

Even if Musk’s antics were not foreseeable, the state of Twitter would have been obvious when lenders and investors did their due diligence.

Lenders and investors proceeded even though they were aware of the precarious financial state of Twitter.

Why would they do this?

Perhaps they were confident that Musk would suddenly turn the platform around and generate revenues in excess of costs.

Perhaps they took a view on the risks and thought they could just write it off if the investment went bad.

Or perhaps they were less interested in any return on investment than in the security they could enforce if the transaction went bad.

Some lenders plan on the basis that an investment will go well – and some lenders plan on the basis that it will not.

If Twitter defaults on the payments, it will be interesting – fascinating – to see what security is in place, if any, and what is enforced, if anything is enforced.

Even if Musk somehow though this transaction was free of risk, those who co-financed the transaction would not have done.

What will happen next?

The situation gets curiouser.

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Musk’s acquisition of Twitter is almost as if it were taking place in a magical business world where legal and other risks do not really exist.

A fabulous world devised by, say, Italo Calvino rather than our mundane real world of contracts and regulations.

Perhaps the fantasy will hold, and Musk will pull off a great commercial success.

Perhaps.

But us trudging legal sorts are used to seeing the downsides.

And the utter lack in this transaction of any visible risk-based approach by Musk is remarkable.

If this transaction escapes the world of fantasy, then Musk and Twitter will need to brace, brace.

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***

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Of “echo chambers” and “preaching to the converted”

10th November 2022

Some places – like courts and legislatures – have shared rules for discourse.

But courts and legislatures are not “echo chambers”.

Certain things are not readily said, and certain hard things are to be said softly.

This is not because there are not disputes – and some differences may be fundamental and life-changing.

It is because shared rules for discourse enable constructive engagements and facilitate important exchanges.

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But.

For some on the internet, the slightest suggestion that there can be shared rules for discourse triggers (ahem) the instant accusation that you want to be in an “echo chamber” or that you “want to preach to the converted” or want to be in “a bubble”.

These phrases – clichés – are usually substitutes for thought.

Yet so accustomed are many to the shoutiness and rancour of internet exchanges that the merest suggestion that there can be shared rules for discourse is seen as some sort of assault on “free speech”.

Shared rules are not, however, undermining of dialogue – they instead make meaningful dialogue possible.

Shouting at people – either in real life or on the internet – is a form of monologue, especially if it inhibits the other person from engaging, or saying something they would like to say.

As such the real echo chambers and preached at choirs are not platforms where there are shared rules, but places where such rules are disdained.

Places like Twitter.

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On this blog I will write things which a number of readers will disagree with: Brexit (where I am ultimately neutral in principle, though critical in practice), codified constitutions (where I am sceptical), electoral reform (where I am wary), and so on.

And the commenters on this blog – many of whom provide comments that are better quality and more informed/informative than my head post – will engage, often with other perspectives.

You can then form your own view.

Pre-moderation and my “irksome” rule prevents comments derailing the discussion.

(And, in practice, few comments are not published.)

As such, I do not think this blog is an “echo chamber”, or that I am “preaching to the converted” (though I sometimes wish I could convert more of you to my idiosyncratic views).

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In practice, accusations such as “echo chamber” and “preaching to the converted” can be rhetorical devices to shut down unwanted forms of discourse.

The important thing is that if you want a platform that suits you then you should be free to use a platform that suits you.

And do not be afraid of comments such as “echo chamber” and “preaching to the converted”.

Hierarchies vs networks in the age of Musk and Mastodon

9th November 2022

Regular readers of this blog will know that central to my thinking about law, government and politics is the so-called Dunbar’s Number.

This number – which is about 125-150 for members of our species – is the number of individuals with which one can have meaningful relationships with at one time.

The implication of this number (in my view) for law, government and politics is that with any community or society larger in size than this number there will tend to be a limit on what can be done without shared rules and recognised commands and notions of status.

It is very difficult to be sustainably dominant merely on a face-to-face basis with large numbers of people.

One way of scaling upwards (and downwards) is by having hierarchies.

And with hierarchies we get the conceptual paraphernalia of lordship and kingship (and ladyship and queenship), with lower levels and higher levels.

But another way of scaling is more horizontal: networks and shared protocols.

Here certain signifiers and agreed rules and lore will mean that groups of people can interact.

What has made me think about this is the current contest between commercial social media platforms (like Facebook and Twitter) and the protocol-based Mastodon, of which I have become a great fan.

(And where I somehow now have 18,000 followers in just a few days.)

The commercial platforms are sometimes called “proprietary” because the software is owned by the corporation.

But they can also be regarded as “proprietary” by how they treat their users.

The new owner of Twitter, in particular, seems to see the users of Twitter as a standing asset to be exploited, by charging users for this or that.

The assumption seems to be that the users will stay and pay.

And the way the Twitter acquisition was structured and financed suggests that there has to be a high level of return very quickly.

Perhaps some users will stay and pay: but many will not.

And some will move to forms of social media where there is not one big corporation in charge, imposing its own standards (and whims), but lots of smaller platforms joined by optional or negotiated protocols.

If so, this will be nothing that new in human history.

Human activity often moves between from hierarchies and networks, and between cathedrals and bazaars.

Networks, of course, bring their own problems – especially when selflessness and self-restraint begin to fall away.

And corporations will tend to have better access to resources to finance and maintain the development of platforms.

But Elon Musk and others will not be the first to discover that the ways and means by which individuals will interact cannot easily controlled by those asserting and expecting dominance.

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Removing all the European Union law in the United Kingdom may be a practical process on which the sun will never set

8th November 2022

Back in August 2016, a month-or-two after the Brexit referendum, I wrote the following at the Evening Standard:

“So extensive are the EU ties which bind the UK that they take at least a political generation to untangle. Gus O’Donnell, the former head of the UK civil service, has pointed out that it took Greenland, with a population less than Croydon and with only the issue of fish, three years to leave the old EEC. And in the Eighties the EEC was a far less complicated entity than the modern EU.

“Thousands of UK laws — nobody knows exactly how many — are based on EU law. Many of these laws only have effect because of the European Communities Act, which would need repeal or substantial amendment. Some of the laws have effect without any UK-implementing measure.”

The phrase I want to emphasise here is “nobody knows how many”.

Six years later, still nobody knows how many laws of the United Kingdom are based on the law of the European Union.

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This situation has to come to prominence because of the daft notion of the current government that somehow all the laws of the United Kingdom are based on the law of the European Union can be identified and replaced at speed.

The entire exercise is ludicrous, as well as probably impossible.

The idea can only have been conceived by someone with no real idea of how entangled domestic and European Union law was by 2016 (or 2019-2020, when we actually departed in practice).

It is not a question of simply going to a database and using the right search terms – say to find all the regulations made under section 2 of the European Communities Act 1972.

Even with those regulations many were revoked or amended other regulations –  so that, without considerable time, you would never know the full extent of the entanglement.

Regulations were also made under other statutes, and much European Union law took effect without needing any local enactment at all.

And the important thing to note is that at the time – 1973 to 2016 – nobody ever thought the whole thing would need to disentangled, and so nobody thought to keep any track of it.

This is why, with the hurried departure of the United Kingdom after the referendum, the whole problem was kicked into the the future with the notion of “retained European Union law”.

Such a disentanglement could not be done at speed before departure, and for the same reason the disentanglement cannot be quickly done now.

It matters not that some politician confidently asserts that “something needs to be done” by some artificial “sunset” date.

And to the surprise of nobody who knows about European Union law, entire tranches of European Union law are still being found:

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It will take a long time – perhaps decades, perhaps never – to unwind all the European Union law that had effect in the United Kingdom and replace or revoke it.

That is not a pro- or anti- Brexit statement, but the simple fact of the matter.

Some of these laws were championed by the United Kingdom when a member state of the European Union.

Some of the laws were hard-fought triumphs by United Kingdom ministers and officials.

Some of the laws are good and beneficial, and some are not good and need removing.

But this can only be done on a slow, methodical law-by-law basis.

As I averred back in August 2016: it may take at least a political generation.

The moment this is realised and accepted by the current government then we may be moving into a practical rather than an ideological understanding of our post-Brexit predicament.

That realisation, however, may itself take a political generation.

It is even likely to be a process on which the sun will never set.

***

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From Twitter to Mastodon

7th November 2022

At the end of last week – exasperated by Twitter and the antics of its new owner – I opened a Mastodon account.

In one way, this is of no wider interest to anyone but me: it is just one person preferring one social media platform to another.

But in other ways, I do think there is something worth commenting on about this shift by me and many others – and worth assessing whether or not it is significant.

(For what it is worth, I acquired over 9k followers on there in 48h hours, and a number of legal and other commentators have joined the site too – I have called this a “Lexodus”.)

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Social media cannot be un-invented.

As long as a person has access to the internet and another person is willing to provide a platform for communication, there will be social media.

The particular platforms, however, will come and go.

Some of you will remember MySpace and Bebo and so on.

There is no reason why any one platform will always be the dominant platform.

And what is a business giant or successful commercial model at one time may not be a business giant or successful commercial model at another time.

For that is the nature of business and of technology.

*

On the face of it, I should have a “stake” in Twitter.

I once spent a couple of years of my life litigating the once-famous TwitterJokeTrial case so as to explain Twitter and social media to the English legal system.

And I have acquired around 240k followers for my main Twitter account.

I am as versed in the lore and the tides and the currents and the perils of Twitter as any old sailor is of those of the sea.

So why move from there?

Well.

First, I am not moving completely – I will still use it as a medium for “broadcasting” my posts and my content elsewhere.

But Twitter is now pretty much a hellsite and a cesspit.

Every time you log in, the list of “trending” topics will make any liberal person’s heart sink.

Quote-Tweets and pile-ons and instant unpleasant replies mean that any considered conversation is all but impossible.

*

Of course, much of this will be defended as “free speech!”.

But the free speech of one can mean the inhibition from speaking for others.

And that is as least as much of a free speech issue, if you think about it.

Twitter is structured so as to encourage rage-tweeting and it enables you to say the most vile things you can think of and get away with, just because you can.

I do not think it brings the best out of people.

I think social media can be done differently.

*

Mastodon is different from Twitter in many ways, some of which are partly unseen and difficult to grasp.

Instead of it being one big site, it is a lot of sites with a common set of protocols.

As such, it is de-centralised.

But once you are in, you can communicate with those who joined via other “servers”.

Yes, some of the jargon is initially inaccessible – but so were RTs, DMs, QTs, #hashtags, and so on, once upon a time.

And each of those servers is independent, and they form a federation as an aggregate.

This means decision-making is decentralised and different servers can have different rules and policies.

And if one server turns vile – or allows vile stuff – then it can be rejected by the others.

As a liberal I find this system, with its in-built checks and balances, a lot more attractive and welcoming than Twitter.

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And what about in practice?

So far, the conversations and engagement on the new site have been pleasant and constructive.

As a worked example, click here for a question about Brexit which led to many helpful and informative replies.

Yes, some of the replies don’t directly engage the terms of the question, but you will see there is a general civility and calmness that contrasts with Twitter.

The longer character limits help too.

So far – and it is still an early stage – Mastodon seems a serious site for serious conversations.

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You may not want to join Mastodon – and I know several of you are not on Twitter.

That may be wise.

But if you do want to try a social media platform wired to avoid many of the unlikeable things about Twitter then Mastodon is worth having a try.

I cannot recommend any particular server – and there are glitches for many when they try to join, and so you may need to be patient.

And if you do join, do say hello and mention this post.

***

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

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Brexit, revisited – and a non-apology

4th November 2022

When I posted a correction yesterday, I got this comment in the moderation box:

Gosh.

Mistakes come in different forms: mistakes of attribution (such as the one corrected) are mistakes of fact, but there can also be mistakes of judgement and reasoning, and even mistakes of principle (either in their assertion or in their application).

And the mistake alleged here was one of those broader forms of mistake.

Should I recant?

Should I admit that I am wrong as alleged?

Well.

No.

The position remains (excuse the pun) that I have no ultimate objection to Brexit.

By which I mean I have no ultimate objection to the United Kingdom not being a member state of the European Union.

I do object – fundamentally – to the United Kingdom being outside of the Single Market.

But it is quite possible to be a member of the Single Market and not be a member of the European Union.

Indeed, a number of European countries are members of the Single Market but not members of the European Union.

I also object – and have done so consistently, and in detail – to the manner and speed of the departure.

(Departure should have been done slowly, gradually and methodically over a decade at least.)

So consistent and detailed have I been in this objection many regard me as pretty much a Remainer.

Some may say – perhaps fairly – that my view is of a Brexit in name only, where the substance of law and policy would not change, but with the United Kingdom formally outside the institutions of the European Union.

My preference would be for a close Association Agreement, with settled mechanisms for dialogue and consultation between the European Union and the United Kingdom on Single Market issues.

But since Maastricht I have not seen the case for the European Union to cover the non Single Market (once called) “pillars” of justice and home affairs, or of foreign and security policy.

Of course: cooperation on such topics is crucial – but there is no necessary reason why such cooperation should be through the European Union.

I also do not think a single currency is essential for a Single Market.

And the United Kingdom’s half-hearted opt-in-and-opt-out approach to the European Union on the other “pillars” and the single currency was a brake on what other member states wanted to do, and so I do think the European Union is better off without us if that is what they want to do.

So, I will not be issuing a correction post on my judgement call.

I realise that the view set out above is not widely shared – and perhaps nobody else has exactly the same view.

But it is my sincerely held view, and I cannot and will not pretend otherwise.

So this is my non-apology, and I hope you can accept it!

***

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Never a blue tick

3rd November 2022

When I was young there was an electronics shop called Tandy in the centre of Birmingham, just down from what was then (and should still be) called the Rackhams department store.

One day in 1981 I recall the shop being full of CB Radio kits and paraphernalia, for CB Radio was to be made legal with a licence and so was the Next Big Thing.

The momentous day came where people could buy a licence from the Post Office.

But.

The kits and paraphernalia were unsold, and the licences unbought.

For nobody seemed to care.

The fact that there was now this informal electronic means of instant communication did not mean anyone wanted to actually use it, and still less wanted to pay for it.

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Whenever I think of social media I often think about CB Radio, and that branch of Tandy with their piles of unsold stock.

Pleasingly, not far from where that store was, there is now a monument to Tony Hancock, whose “Radio Ham” mocked an earlier generation of instant electronic communication enthusiasts.

*

One assumption is that people will carry on caring about social media in the way they did when it was new and exciting.

Of course: the idea of a social media platform cannot be un-invented, just as short wave radio could not be un-invented.

As long as there is a world wide web and access to an internet connection then there will always be a possibility of social media.

But there is no particular reason why one platform will last forever.

I recall when Friends Reunited and then MySpace were the Next Big Things.

There is no reason why Twitter and Facebook cannot go the same way, to be replaced by a new platform – or by no platform at all.

The problem for many of these sites is their commercial model.

People do not want to pay to click things.

What did for Friends Reunited for me, I recall, was then they started charging me to do things for which they had not charged before.

And the new owner of Twitter is now discovering people do not want to pay to have blue ticks.

(“The ticks are not blue but white,” say the most boring people on Twitter, just before they are muted.)

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I have never had a blue tick, and I refused the offer when it was made to me.

I set out my reasoning here.

Indeed, I am opposed to the blue tick system, as it can confer a false quality mark and it has done for some vile Twitter accounts.

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Charging for this supposed privilege seems to be backfiring.

People do not want to pay to click – or to tweet.

And just like the hapless Tandy store managers surrounded by their unsold CB Radio kits, one can imagine Elon Musk wondering why people are not paying to use instant electronic communication.

While social media is here, and free and easy to use, it will be used.

But make it less free or less easy, and then it will tend not to be used.

Perhaps Musk can convert the Twitter platform into something which will be the Next Big Thing.

Perhaps Musk is the new king of the road:

“Cos when you’re up in the cab, you’re the king of the road
And it’s dead romantic, like.
And then I remembered my two-way radio,
So I started feelin’ better,
And I thought “I’ll start a convoy
You know, just like that American feller.””

“Er, Plastic Chicken, don’t you think you’d better change gear for this hill?
What’s wrong with the gear I’ve got on, doesn’t it look right?
Change gear, ram your foot on the floor and change the gear, what you talking about, you don’t know how to drive a truck do you, you’ve no idea how to drive a truck, you’re mad..”

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We will see if Musk has any idea how to drive this particular truck.

***

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Correction to yesterday’s post

3rd November 2022

Yesterday I attributed the following to the leader of the opposition:

“The Prime Minister promised integrity, professionalism and accountability in Government. His Home Secretary has leaked information, is overseeing chaos in the Home Office and has broken the law. What will she actually have to do to get the sack?”

The question was instead from Dame Meg Hillier, the chair of the public accounts committee.

I have corrected and amended the post accordingly.

I apologise for this error.

(It is never fun to correct such an error, but it should be done openly, as it goes to ensuring that readers can have confidence in the blog generally.)

***

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What does the Home Secretary mean by “taking legal advice into account”?

All Souls Day, 2022

What does it mean for a home secretary to “take legal advice into account”?

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This question is prompted by statements by the home secretary to the House of Commons in respect of the escalating problems at the Manston asylum processing centre.

On Monday she told members of parliament:

“…I have never ignored legal advice.

“As a former Attorney General, I know the importance of taking legal advice into account.

“At every point, I have worked hard to find alternative accommodation to relieve the pressure at Manston.”

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So whatever “taking legal advice into account” means, it does not – for her – mean “ignor[ing]” that advice.

The home secretary herself makes that distinction and juxtaposition.

*

The home secretary also said in her prepared statement:

“As Members will be aware, we need to meet our statutory duties around detention, and fulfil legal duties to provide accommodation for those who would otherwise be destitute.

“We also have a duty to the wider public to ensure that anyone who has entered our country illegally undergoes essential security checks and is not, with no fixed abode, immediately free to wander around local communities.”

Note that “also”.

*

Those quotations are from her prepared statement, but in response to an opposition question she then also stated:

“I have not ignored or dismissed any legal advice with which I have been provided.

“I cannot go into the details of that legal advice because of the Law Officers’ convention.

“That is part of the decision-making process that all Ministers go through.

“We have to take into account our legal duties not to leave people destitute; I have to take into account the fact that I do not want to prematurely release hundreds of migrants into the Kent community; I have to take into account value for money; I have to take into account fairness for the British taxpayer.”

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Again the distinction is made with ignoring advice, but you will also see that taking into account legal advice is now set against other (competing?) things for her to take into account: “the fact that I do not want to prematurely release hundreds of migrants into the Kent community; I have to take into account value for money; I have to take into account fairness for the British taxpayer.”

These factors are presented as being alongside – and perhaps of at least equal importance to – “tak[ing] into account our legal duties not to leave people destitute”.

*

The home secretary in another reply said:

“I confirm that I have not ever ignored legal advice.

“The Law Officers’ convention, which I still take seriously, means that I will not comment on the contents of legal advice that I may have seen.

“What I will say is this: I am not prepared to release migrants prematurely into the local community in Kent to no fixed abode.

“That, to me, is an unacceptable option.”

The impression one gets from this further reply is that her not being “prepared to release migrants prematurely into the local community in Kent to no fixed abode” is not merely a factor to consider alongside any legal advice, but is actually the determining factor.

She seems to see that as the “unacceptable option” to which all other factors presumably, including legal advice, must yield.

If so, this accords with the “also” passage in her prepared statement.

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On Sunday, the day before that commons statement, the well-connected political journalists at the Sunday Times reported:

“Suella Braverman has been accused of failing to act on legal advice that the government was illegally detaining thousands of asylum seekers. The move could cost taxpayers an expensive court action.

“The home secretary received advice at least three weeks ago warning that migrants were being detained for unlawfully long periods at the Manston asylum processing centre in Ramsgate, Kent. According to five sources, Braverman, 42, was also told that the legal breach needed to be resolved urgently by rehousing the asylum seekers in alternative accommodation.

“Two sources said she was also warned by officials that the Home Office had no chance of defending a legal challenge and the matter could also result in a public inquiry if exposed.

“A government source said: “The government is likely to be JR’d [judicially reviewed] and it’s likely that all of them would be granted asylum, so it’s going to achieve the exact opposite of what she wants. These people could also launch a class action against us and cost the taxpayer millions.””

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On Hallowe’en, ITN reported this further information:

If this ITN report is correct – and it is certainly plausible – this would explain why so many home office “sources” are aware of this issue.

As this blog has mentioned before, it is a significant but not unknown step to go to the Treasury Devil – James Eadie, the government’s senior external legal adviser – for an opinion, especially before any actual litigation.

(You may recall that the Devil was invoked in another matter involving the current home secretary when she was attorney general.)

For the Devil to be invoked and for the advice just to come back as reinforcing the internal home office advice would have been rather the setback for the home secretary.

It would have meant that not only did she have advice before her which was unwanted from internal lawyers, but that the unwelcome advice had been upheld by the most senior external lawyer available to the government.

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If so, what is a home secretary to do?

One thing a home secretary can do is to comply with legal advice,

That is what is expected by the ministerial code and, indeed, by the principle of the rule of law.

Of course, there will be situations – especially in respect of exercises of discretion in individual cases – where legal views may legitimately differ, and so a minister can take a view in respect of litigation risk.

But that latitude is not there in respect of compliance with general statutory duties.

The only option with a statutory duty for a government department is to comply with that duty.

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Now we go back to what the home secretary said, and what she did not say.

The home secretary said that she did not “ignore” legal advice.

And the home secretary said that she took legal advice and legal obligations “into account”.

But the home secretary has not said – expressly – that she complied with the legal advice.

If the home secretary had complied with the legal advice she could simply say “I have complied with the legal advice”.

But she has chosen not to do so, and has used what seems to be evasive wording instead.

The most plausible explanation for this is that she has not complied with the legal advice.

Given the nature of statutory duties, it is not clear how this can be done.

They tend to be legally binary: you either comply or you do not comply.

They are not an item in a basket with other items.

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In the house of commons today, an opposition politician said:

“The Prime Minister promised integrity, professionalism and accountability in Government. His Home Secretary has leaked information, is overseeing chaos in the Home Office and has broken the law. What will she actually have to do to get the sack?”

[An earlier version of this post wrongly attributed this quote to the leader of the opposition. This was not the case, and I have amended this post accordingly. I apologise for this error.]

She would not have said “broken the law” lightly.

Perhaps she was referring to something else (and please let me know in the comments below if you think that was the case) but the impression I formed was that she was referring to the Manston situation.

The leader of the opposition then asked the prime minister:

“Did the Home Secretary receive legal advice that she should move people out—yes or no?”

When this question was not directly answered, he then said:

“I think the answer to the question of whether the Home Secretary received legal advice to move people out of Manston is yes.”

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Presumably the legal advice to which the leader of the opposition was referring is the same legal advice which was provided by the Devil and internal legal advisers.

If so, then it seems that that the home secretary has placed a non-legal factor above compliance with the law.

She has decided that the non-legal factor prevails.

In doing so, the home secretary presumably thinks that this weighing exercise means that she has not “ignored” the legal obligation.

Instead, she has seemingly given less weight to that factor than to another factor.

If this interpretation is correct then it accords what she told the house of commons on Monday and it also accords with what the home office “sources” are saying to reporters.

I cannot think of any other interpretation that accords better with the available information.

(If you can, please do set it out below.)

The problem with this position would be that the relevant legal obligations are not just another item in a basket.

Instead, it is the breaking of those legal obligations that should be the “unacceptable option” to any home secretary, and indeed to any minister or official.

But this home secretary appears to think there is an option that trumps such compliance.

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For the reasons set out above, it seems that the home secretary was advised to comply with the law and she has chosen not to do so, maintaining that “taking account” of the law in such a situation is somehow not to “ignore” the law.

That would be a remarkable position for the home secretary to adopt and, if so, one would expect the courts to take a different view if the matter is actually litigated.

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