Author: David Allen Green

Law, blogging and social media – the text of a recent lecture

7 October 2022

Here is something a little different – this is a lecture I recently gave to students at my alma mater the University of Birmingham.  It has been amended and updated since delivery.

**

Law, blogging and social media

A lecture by David Allen Green

Honorary lecturer in the public understanding of law at the University of Birmingham

**

This is a lecture about legal blogging and legal commentary on social media: in general terms, that is non-commercial and usually free-to-read online commentary on cases and laws, often addressed to the interested general reader, as well as to specialists and students.

Blogging and social media generally is a phenomenon that has really come about in the last twenty years, though there are some precursors.  And legal blogging and legal commentary have become more prominent in the last fifteen years.  To an extent it complements the mainstream media, but it also compensates for the decline in specialised legal reporting and comment by the press and broadcasters.  And it can also do things which are innovative.

There has also been an increase in legal podcasting and law-related videos on YouTube and other media, and some of what I say will apply to that too, though I know less about that.

In one way, this rise of blogging and social media is a curious phenomenon, as of all subjects, you may think that the study and practice of law would not require any more words. For words are the stuffing of law, at least in the common law jurisdiction of England and Wales.

Words everywhere.  Words as the sources of law.  Words set out in legal instruments.   Words in the various written documents which can be put before that court or tribunal: pleadings and statements of case, and what Charles Dickens once listed sarcastically as “bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters’ reports, mountains of costly nonsense”.

And in addition to all these formal words, we have all the further words of explanation, analysis and commentary. Libraries are packed with these words, in textbooks and journals.

Faced with all these words one can rather sympathise with Eliza Doolittle in My Fair Lady:

Words! Words! Words!
I’m so sick of words!
I get words all day through;
First from him, now from you!
Is that all you blighters can do?

Lawyers are like the tormentors of Eliza Doolittle, for it seems that words are all that us blighters can do.

*

So, whatever is lacking in the study and practice of law, it does not lack for words.  Indeed, you may think there are too many words already, and that there should be fewer and that no lawyer or legal commentator should produce any more words than is necessary.  You may well have a point.

But in the last twenty years there has been this new medium for the discussion of law: the internet.  The internet, in its World Wide Web incarnation, has given rise to instant international electronic publication.  And this, in turn, led to “web logs” – blogs – and social media platforms.  Millions of extra words about law have now been published, in addition to the many words that stuffed the law already.

Perhaps all the words published online about law in the last fifteen or so years are more than all the words in a comprehensive law library.  If so, nobody would be surprised.

In this lecture I shall set out features of blogging and social media generally, as well as some observations about legal blogging and the use of social media in particular.

I speak from the perspective of someone who came into law as use of the internet in legal practice became popular and then indispensable.

I remember the bemusement in 1997 when Massachusetts judge Hiller B. Zobel first published his judgment in the Louise Woodward case on the internet rather by any other means.

I also remember in 1998, as the first Research Associate at what was then (and should still be) the Law Faculty of this university, printing off the judgment in Pinochet (Number 1) on the day it was handed down, to give to an excited academic who was not used to obtaining a written judgment so quickly.

But by the time I was called to the Bar in 1999 and cross-qualified as a solicitor in 2001 there were computers with internet browsers on almost every desk of every law firm and every lawyer had an email address, though some partners insisted on emails being printed off and brought in by their secretaries.

And this lecture is is also from the perspective of someone with over twenty years’ experience in legal practice and about fifteen years’ experience of seeking to explain legal matters in blogs and social media, and in the mainstream media, as well as dealing with blogging and social media matters as part of my legal practice.

I was not one of the earliest legal bloggers, but I was early enough so that I had to code my posts in HTML, and I used my blog to help bring about libel reform by detailing the then-notorious illiberal and misconceived case of the British Chiropractic Association v Simon Singh.

I was also a fairly early user of Twitter, and I was the appeal solicitor in the once-famous “Twitter Joke Trial” case, where we spent three years explaining internet humour to the English judiciary, before the Lord Chief Justice laughed at one of our barrister’s jokes in court and we somehow won.

*

So let us ask: “What is a blog, and what is it to blog?”

For before we can assess legal blogging, we need to understand the nature of blogging – and also the nature of social media, which some have called “micro-blogging” – and how blogs and blogging differ from other media.

Here you will see that the law of England and Wales has shied from providing a definition. According to the legisislation.gov.uk website, there is only one Act of Parliament which mentions the word “blog”.

Paragraph 8 of Schedule 15 of the Crime and Courts Act 2013 refers to a situation where a person publishes news-related material on a “multi-author blog”. The term “multi-author blog” is then defined as “a blog that contains contributions from different authors”.  But the wise parliamentary drafter did not attempt to define the word “blog”

The Oxford English Dictionary is a little more revealing. Blog as a noun is defined as “[a] frequently updated website, typically run by a single person and consisting of personal observations arranged in chronological order, excerpts from other sources, hyperlinks to other sites, etc.; an online journal or diary”.  And as a verb, to blog is “[t]o write or maintain a blog”.

I am a commentator, and not a lexicographer, and so I will not presume to offer a definition of a blog, which would enable you in every circumstance to determine what is a blog and what is not.

But what I can do is to set out some broad features of blogging, and how these features distinguish blogging and social media from other forms of media.

*

The first feature of blogging seems banal, but it is crucial. It is that blogging is about writing for a screen – and thereby also about reading from a screen.

This quality distinguishes blogging from book-based and other paper-based media. Of course, one can print off blogposts to read, just as those partners printed off their emails.  Some bloggers have even published books based on blogposts.

But blogging – ultimately – is about what you can do with screens and keyboards, with a computer or mobile device.

This means that the writing of blogs is different from writing for publication in hard-copy. Instead of wanting the reader to turn a page, or to compare text on one page with another page, one aims for the reader to scroll, sometimes on a relatively small screen, and often not at a desk or in a library.

And writing readable, scrollable text is a skill. One law firm, Pinsent Masons, with its pioneering and highly regarded Out-Law site, even sensibly employs those from a journalistic background to write posts.

For the independent blogger or commentator on social media, an understanding of how your text or other material will be looked at by your readers should govern how you present it. Clutter is out.  And long paragraphs are out – though you do not need to go to the extreme of one-sentence paragraphs.  A reader is more likely to read ten paragraphs of ten words each, than a long paragraph of one hundred words.

And brevity is your friend. Long paragraphs can hide clumsy thinking.  With short paragraphs you must set out your propositions succinctly, with nowhere to hide.  It is a useful (if sometimes difficult) discipline.  But in this way good internet writing helps develop and sharpen your own thinking.

*

A second, and also straight-forward, feature of blogging is that usually the blogger is a self-publisher.

This is in contrast to, say, a writer published in the mainstream media, where they are commissioned, edited (and sub-edited) and published by other people: for example, a newspaper or magazine weekly columnist who has to provide an 800 or 1200 word opinion every Thursday, regardless of whether their view warrants that many (or few) words, and whether Thursday is the best day to collect their thoughts.  A blogger can publish what they want when they want, and a blogger can also decide not to publish anything at all.

A blogger is often a person who, entirely by their own volition, publishes a thing to the world. Normally nobody has asked for it.  Nobody may even want it.  But the thing is published anyway.

Of course, this means that blogging and social media can be dominated by those who are more confident, perhaps over-confident. You are assuming that your views are worthy of publication.  This is the inescapable truth for anyone who publicly volunteers their views on the internet, and it actually covers both those who blog and those who criticise them.

But confidence does not necessarily mean that you have anything worth saying. Other things are needed.

And what offers a check and a balance to those who are over-confident is the engagement with the readers, if any, of what you publish.  For just as you are free to publish what you want, your readers will also be free to say what they think of what you write.   They may be on the other side of the moat, but they can be just as repellent (and brutal) as any gatekeeper.

Publishing to the world is relatively new thing.  Before the World Wide Web it was practically difficult for any person to personally publish a thing outside of those to whom they could deliver or post a physical copy, and it was almost impossible to broadcast, unless you went through a gatekeeper or, as with pirate radio stations, broke the law.

You could print off and distribute a leaflet or pamphlet, but there would be physical and logistical limits as to how much of what you created you could provide to others.  The gatekeepers – the newspapers, the publishing houses, the established broadcasting stations – controlled who had access to wider audiences.  The means of the publication and broadcast of media products were in the hands of the few, and not the many.

Now self-publication of blogs and social media posts has enabled those who are not able (or willing) to go through more traditional outlets for the dissemination of their insights.  Of course, there is no doubt that the lack of commissioning and editing (and sub-editing) stages mean that there is a great deal of dross being published on blogs and elsewhere on the internet.  But the lack of prior approval means that many – who would otherwise not find it easy to publish to the world – are able to do so, regardless of any gatekeepers.

One of the great early blogs was “Night Jack” which was by an anonymous then-serving police officer, describing the realities of policing. That blog deservedly won the Orwell prize.

More recently the “Secret Barrister” Twitter account and blog has provided an articulate and scathing ongoing account of the serious problems with the criminal justice system, as have other criminal barristers on social media such as Joanna Hardy-Susskind, who recently did a brilliant post on the criminal justice system.  The contribution of these front-line practitioners to the public debate on criminal justice has been invaluable.

There are other examples. One outstanding blogpost was written by the tax barrister Jolyon Maugham (who has since gone on to other things).  In that post he described what amounted to a racket: how senior tax counsel gave opinions that they could not have sincerely believed in support of elaborate tax avoidance schemes.  It was a brave and remarkable post, and it showed the value of informed legal blogging, putting something into the public domain that otherwise could not have been published, at least not easily.

But there is one serious problem that comes with self-publication – and it is a problem that those with a legal education and/or a legal qualification should be especially conscious.  A self-publisher is, in general terms, a publisher for the purposes of civil and criminal liability.  Qualified lawyers are also subject to their respective profession’s disciplinary code.  Many qualified solicitors will also be subject to media and social media policies of their firms.  And those applying for jobs may get their social media history searched and vetted by prospective employers.  Blogging and social media therefore are full of perils.

So bloggers and tweeters are, as self-publishers, free to blog and tweet as they wish, at least in there not being any third party approval before you press “send”. But this freedom includes the freedom to publish and be damned.

*

A third quality is that blogging and social media is occasional and flexible.  As already mentioned, one can choose when to blog and tweet and when not to do so.  Unlike, say, a columnist in the mainstream media, bloggers and tweeters usually do not have to have a view on one topic every week which is exactly 800 words long.

So, if there is nothing to blog or tweet about, or you have not got anything worth saying, then you do not have to say anything. And if what you want to blog or tweet about needs only a few paragraphs, then there is no need to artificially inflate the word count.

Indeed, in my view, blogging is more akin to pamphleteering, than anything else in the traditional media. The pamphleteers were those with access to a press who wanted to publish and distribute their views and share information outside the usual media of their time.

Blogging and social media can also be speedy. When there is something worth saying, it can be part of the public debate very quickly.  For example, at the time of the then Prime Minister’s attempt to invoke Article 50 without legislation, a speedy blogpost by Nick Barber, Tom Hickman and Jeff King provided the legal basis for what then became a successful legal challenge by Gina Miller and others.

Another topical post was when the immigration lawyer Colin Yeo used the newly released Paddington the Bear film to frame an informative and engaging post about the rights of refugees and migrants. This post, which may be one of the best English legal blogposts ever published, used one event brilliantly to explain another issue dominating the news.

*

The electronic nature of blogging provides its fourth feature, which also distinguishes it from many other forms of media. This quality is that a blog can link to other webpages.

A legal blogger can therefore link to their sources, especially to legal materials such as case reports and legislation. What other writers can only do indirectly with footnotes, a blogger can do directly with hyperlinks.  So blogging is not only pamphleteering, but pamphleteering with electronic footnotes.

This is especially useful for blogposts which comment on cases and other legal materials, and as such they allow instant comparison for the reader between the source and the commentary. Some blogs, such as the highly regarded SCOTUS blog in the United States, and the INFORRM media law blog in the United Kingdom, provide such sourced posts regularly, with multiple bloggers contributing.

Many readers of a blog will not actually click these links.  On my own blog, it is usually only 1% of visitors who will click on something in the post.  But it is the fact that the links are there, and so it is open for the curious or sceptical reader to check things out for themselves, which provides confidence and comfort.  Because a reader knows that they can click, they will often not feel any need to do so.

As courts and public authorities become more prone to publishing what can be called “primary” materials on the internet, then bloggers and those on social media can, in effect, be the first gloss of interpretation of those materials, in addition to and sometimes circumventing the mainstream media.

And sometimes, as with Adam Wagner’s extraordinary mastery of the confusing and shifting coronavirus regulations, the blogger can become an authoritative source of information even for the courts and public authorities themselves. In this way the volunteer blogger can become an important public service.

*

The fifth feature of blogging and social media has already been mentioned. It is engagement: the immediate and candid (and public) relationship the online commentator will have with their readers and critics.

Of course, lawyers in practice and academics facing peer review also are used to adversarial situations: of people telling you that you are wrong, and worse.

But the intense and open nature of feedback on the internet means that if you are wrong, this will be pointed out swiftly and sometimes powerfully.

This engagement provides a discipline that helps you avoid foreseeable errors and lazy overstatement. Of course, some will still attack you anyway, for saying something which you did not say or did not mean; but writing for a critical audience concentrates the mind wonderfully on getting things as right as possible.

This constructive engagement is distinct from trolling: the vile or condescending messages that unfortunately are a characteristic of too many online exchanges.

A blogger or social media commentator who is seen as good and insightful will, by an informal process of internet peer review, gain a substantial following.  But such a reputation is precarious, and you are only one false move from unfollows and hostility.

Some blogs and Twitter accounts prompt comments and replies that are often more valuable than the original posting.  This is certainly true of my own law and policy blog, where the real value of the blog is invariably in the comments below the line, which take my head post as a starting point.

*

Legal blogs and social media accounts are varied.

Some are veterans of mainstream media, such as the matchless Joshua Rozenburg.   One outstanding blog was by the late Sir Henry Brooke, a retired Lord Justice of Appeal, who can be fairly regarded as the best legal blogger the United Kingdom has ever produced, who turned to blogging as a hobby in retirement and mastered the medium immediately.

Some commentators are earnest, and some are less earnest.

Some blogs are by practitioners and legal academics, and some are by those with expertise even if they are not legally qualified.  And some are from student and those training to be lawyers.

There are blogs and social media accounts that do brilliant expositions of the black-letter law.  There are those that offer speedy case comments and critiques of formal documents.   My own blogging tends to take something legally related in the news and contextualise it and assess its practical significance.

Some blogs have become go-to sources for specialised insights into practical issues such as the civil litigation blog of Gordon Exall, or areas of practice such as the “Pink Tape” family law blog of Lucy Reed or the housing law blog “Nearly Legal”.

Some of the most valuable blogs are those which challenge and correct conventional and sloppy thinking by other commentators, for example the blogger Tony Dowson with his prescient post on the Attorney-General’s reference in the Colston matter – to which he has now provided an update.

Some blogs and resources are aimed at students, such as the valuable “Lawbore” work of Emily Albon.  And since the early days of use of internet by lawyers, Delia Venables has been an outstanding curator of links to available online legal resources.

Some of these blogs and social media accounts do what used to be done in mainstream media; others do things which were not really open for traditional media channels.  Some are anonymous, and others are emphatically and stridently self-promotional.  Some are connected to business and practice development, while others keep their practice and their commentary separate.

There is no one right way – no single model – of using a blog or a social media account for explaining, analysing or commenting on the law, but there is one golden rule.

The golden rule that all this online legal commentary should comply with is that, as far as you can, you should try to get the law right.

This means that you do not publish something about the law about which you are not confident; and it also means that if you are shown to be wrong (or to have overstated something) you respond accordingly.  Sometimes corrections and clarifications (and deletions) are painful, if not humiliating.  But they have to be done.

This duty is distinct from any professional duty as a legal adviser. Not all legal commentators are in legal practice – and some outstanding legal commentators are not even legally qualified.  Explaining and commenting on the law generally is not the same as advising a client in a particular situation.

But taking the law seriously, even if you seek not to take yourself too seriously, is essential.

And if you do not take the law seriously, then whatever you are doing (or think you are doing), you are not commenting on the law but are doing something else less useful instead.

*

So why bother with legal blogs and social media?

For the reader – or lurker – there is the benefit of high-quality explanation, analysis and commentary that is either not elsewhere or is not easily obtained, and in a form that is easy to scroll and to click on links to open new tabs.  As long as you use your critical faculty, or rely on the critical faculties of those you respect, then you are giving yourself access to a great deal of first-rate legal information.

For those who are tempted to blog or tweet about the law, we salute you.  For every thing you may gain by doing so, there may be an equal and opposite reaction.  These can range from being simply ignored or being told that you are wrong, to creating professional and legal risk for yourself.  It is not to be done lightly, and many sensible student and lawyers choose not to comment online about the law.

But there is also something to be said for law students, law academics and legal practitioners doing what they can to promote the public understanding of law. For if lawyers do not do this, then it will be left to others, and so there will be caricatures instead of insights, and misinformation instead of information.

And so even if you do not provide online legal commentary yourself, you should help circulate good legal commentary when you come across it, for the benefit of others as well as for your own benefit.

*

As we started with My Fair Lady we can also end with it.

In another scene of the film, Professor Henry Higgins turns on all the phonographic machines in his gorgeous library, and dials the machines louder and louder.  All we hear is a babble of voices, and of words.  Colonel Pickering covers his ears.

And this is how the internet and social media can seem to the uninitiated – a louder and louder babble of voices and words.  In response to this, we may wish to share the reaction of Colonel Pickering and cover our ears, or at least turn off our browsers and internet connections.

But it is not all noise of the same quality, for there are signals there too.  Not all words of equal value.  For just as there are good textbooks and bad textbooks, and well-reasoned judgments and less well-reasoned judgments, there is good and well-reasoned online legal commentary, and there is bad or less well-reasoned online legal commentary.

The task to develop is to be able to know the difference, and so benefit from – and even promote – this boon to the public understanding of law.

***

Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.

Posts like this take time and opportunity cost, and so for more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

***

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.

 

What Truss’s conference speech did not say

6th October 2022

The speech of the new Prime Minister Elizabeth Truss to her party conference in Birmingham yesterday was a short and fairly unmemorable affair.

To the extent it will be remembered it will be because nothing untoward happened, which is in contrast to the fiasco of the conference as a whole.

But.

The speech was perhaps significant for what it did not say.

There was little of the infantile “anti-woke” culture war stuff.

Brexit was also hardly referred to – just four insubstantial mentions.

There was no explicit mention of the Northern Irish Protocol, let alone any renewed threat to break international law – either by “necessity” or otherwise.

And human rights had no mention, other than a snippet about stopping “European judges” doing things which they probably cannot do anyway.

Lawyers were not mentioned expressly, though accountants were.

From a law and policy perspective there was little in the speech of substance.

And given we are now in the second half of the maximum term of this parliament, with the next general election nearer to us in time than the last one, then there is little opportunity for the Truss administration to do something fundamental to our constitutional arrangements.

Of course, an economics and policy blogger would have a different view.

And economics punditry will benefit from the government’s “growth” policies, even if the economy does not.

Perhaps there is still more constitutional drama – and perhaps even constitutional crises – ahead.

And we seem to do now have a de facto hung parliament – and they are always fun.

The current period of constitutional excitement may not yet be over.

But.

You would not know it from that lacklustre conference speech.

***

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.

The comments policy is here.

 

The European Political Community – then and now

5th October 2022

You would not think that that Europe wants more political organisations: there is the European Union and the Council of Europe and the European Free Trade Association and the Organization for Security and Co-operation in Europe and so on.

But there is now to be a new one: the European Political Community, which is to meet in Prague later this month.

When I heard this name, it seemed familiar.

This is because there was once another proposal for a European Political Community at the same time as the European Coal and Steel Community (which preceded the European Economic Community) and the aborted European Defence Community (which was rejected by the French).

You will see the European Political Community of 1952 was a grand and ambitious federalist proposal, but it never got off the planning desk after the failure of the European Defence Community.

The ideas which were behind it however became part of the European Economic Community and then the European Union.

Seventy years later the same name is now being used for what appears to be a purely intergovernmental exercise, with no shared institutions.

This is a good thing: one forum for all European countries is a talking-shop which is well worth having, without courts and commissions and treaty obligations.

And, rather wonderfully, it is going to be covered by Eurovision – showing that entity has a role beyond song contests.

The European Union should never be equated with “Europe”.

They are not the same.

The European Union comprises 27 of (about) 50 European countries – just over half.

This new organisation is a boon for genuine Europeanism.

Let us hope that it is more successful than its 1952 incarnation.

***

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.

The comments policy is here.

“Birmingham is a dump”

4th October 2022

The governing party of the United Kingdom is currently imploding in my home city of Birmingham:

https://twitter.com/hoffman_noa/status/1577303194224529408

It makes one think of this:

https://twitter.com/sjmay92/status/1201421957390098432

*

There is a certain irony-of-sorts in Birmingham being the venue for this implosion, for two reasons.

First, the modern Conservative party is largely the product of the politics of Birmingham.

Before 1885, the Conservative party had been more-or-less out of office for fifty years.

Peel came and went, and Disraeli had just come and gone.

And then: there was the Irish Home Rule crisis, and the Birmingham politician Joseph Chamberlain and his “Liberal Unionist” supporters crossed the house to sit with the Conservatives, thereby creating the Conservative and Unionist Party.

And it was this combined party that went on to dominate British politics.

(As indeed did the house of Chamberlain, providing a notable foreign secretary and then a prime minister between the wars – both while sitting as Birmingham Conservative and Unionist MPs.)

Until 1945 Labour politicians complained of the Birmingham problem in that this heavily industrialised city kept returning Conservative and Unionist MPs.

And as late as 1992, half the city’s MPs were still Conservative, including the car industry constituencies of Northfield, Yardley and Selly Oak.

And now it looks as if the city is hosting the party’s disintegration.

*

Second, Birmingham was where Theresa May gave that speech – after the Brexit referendum.

The necessary implication of her speech was that the United Kingdom was not only to depart the European Union, but that it would also leave the single market and customs union.

These were the famous red lines, which meant that the United Kingdom – or at least Great Britain, if not Northern Ireland – was locked into a Brexit that would mean being outside the European Free Trade Area.

This was not a necessary interpretation of the referendum result – other interpretations were possible.

But it was that interpretation which has since shaped the course of our politics generally, and of the Conservative party in particular.

And it started in Birmingham.

*

A few days ago, a visiting Conservative activist was rude on social media about Birmingham:

In some ways our correspondent is correct.

Birmingham is where the Conservatives are dumping policies such as the abolition of the 45 pence tax rate.

Birmingham is where the Conservatives are dumping any sense of collective responsibility and any reputation for governmental competence.

Birmingham, it seems, is where the Conservative party as a serious political force will itself be dumped.

Birmingham is a dump.

***

Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.

Posts like this take time and opportunity cost, and so for more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

***

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.

Do we now have a hung parliament?

3rd October 2022

This is not a partisan blog, and long-time readers will recall that I was a fan of the hung parliament of 2017 to 2019.

My sentiments were, however, not shared by many in politics and that parliament came to an abrupt end in December 2019.

This was when the opposition parties – stupidly in my view – agreed to an early general election, which turned out to be on the issue of “getting Brexit done”.

And so the Conservatives got a majority of eighty.

To a large extent all what has happened in British politics since 2019 is not so much the fault of Conservatives, but the fault of the opposition parties in allowing it to happen.

But.

Just over halfway through the maximum length of this parliament, we seem again to have somehow reverted to what some now call a hung parliament.

Chris Bryant has got a point.

The governing party now, in reality, comprises the fifty Conservative Members of Parliament who voted for Elizabeth Truss in the first round of the recent leadership campaign, and about a hundred or so more who have or want ministerial office.

On the government backbenches you have figures such as Michael Gove and Grant Shapps, as well as Rishi Sunak and indeed Boris Johnson, and you also have the European Research Group and the Northern Research Group.

The governing party in the House of Commons is currently an unstable coalition.

This was most obvious in how the U-Turn in the abolition of the 45p rate came about.

Gove and Shapps said they would be against it, and so it was dropped.

Those Truss supporters who fantasised about what they could do with an eighty majority are going to be disappointed and frustrated with the actuality.

Not least because the majority has gone down because of by-election defeats.

Thirty-or-so Conservative backbenchers can now veto government policy – and they know that they can get their way.

*

Johnson warned us against a hung parliament in 2019.

But it looks like we have got one anyway.

Let us hope it lasts, and that the government does not again get carried away with forcing things through just because it can.

Why and how this has come about will fascinate political commentators.

But from a liberal constitutionalist perspective, it is to be welcomed.

We are governed better when there is real parliamentary accountability and scrutiny – when the government cannot just assume it will get legislation through the commons.

Perhaps party discipline will reassert itself in the governing party, bringing this situation to an end.

Perhaps.

But in the meantime, let us welcome what appears to be a hung parliament again.

***

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.

The comments policy is here.

FoI requests regarding the “absolutely devastating” legal advice

30th September 2022

The Freedom of Information Act of the United Kingdom is not an impressive statute.

I have known this from the beginning, for I was a government lawyer when the Act took effect.

I even attended meetings of the now notorious “clearing house” at the Cabinet Office that considered certain complex and/or cross-governmental requests.

*

The Act has no bite – unless you want to spend a considerable amount of time challenging decisions all the way to court.

If a public authority does not want to give you the information requested then it will usually find a basis for not doing so.

There is perhaps no more insincere a genre of official correspondence than FoI letters saying that exemptions apply, additional time is needed and balancing exercises need to be conducted – all of which are, in reality, delaying tactics which end up with no information being willingly disclosed.

Everyone concerned knows this – those requesting the information, the FoI officers, and their internal clients.

It makes you think of this classic Onion story:

Everyone involved in making a FoI request, handling a FoI request, considering a FoI request extremely cynical.

*

But.

From time to time, FoI requests may be useful.

And in respect of the “absolutely devastating” legal advice previously discussed on this blog – see here and here – FoI requests may be interesting.

This is partly because by publishing the advice on 2 September 2022 the government waived legal advice privilege in that advice.

The usual go-to privilege exemption for government in respect of FoI requests for matters concerning legal advice is, in my view, no longer available for the government here.

And by going to an external law firm, rather than using the government legal service, the usual go-to exemption of commercial interests is less strong for the government, as there is a public interest in openness about whether this procurement actually provided value for money.

The immediate publication of the advice on the gov.uk website also raises a further public interest in favour of disclosure, given that it appears to have been an attempt to bounce the privileges committee.

As the committee stated:

My FoI requests are here, where you will be able to follow their (lack of) progress.

Each request seeks disclosure of particular information and there is method in the madness of how I have arranged and framed the requests – in particular how they are arranged and framed so as to strengthen the (inevitable) appeals.

I have no illusions that the government will not disclose this information happily, and so I am thinking backwards from the (inevitable) appeals.

“Everyone involved in making a FoI request, handling a FoI request, considering a FoI request extremely cynical.”

*

My motivation, for what it is worth, has little or nothing to do with whether the former Prime Minister is disciplined or not by the privileges committee.

That is a matter for the committee and parliament, and I do not really care either way, as long as the committee and parliament are satisfied.

My concern, as a former government lawyer, is that there is something deeply wrong for any government (of any party) to use and publish legal advice in this manner.

Legal advice is legal advice, and government communications are government communications, and there should be little public overlap.

And this is especially the case where it appears an opinion was sought not for legal advice, but to be published and publicised so as to influence a parliamentary committee and to place public and media pressure on that committee.

It would not matter if that was Boris Johnson or Jeremy Corbyn or Elizabeth Truss as Prime Minister.

Something wrong happened here, and it really should not happen again.

***

Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.

Posts like this take time and opportunity cost, and so for more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

***

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.

The comments policy is here.

It is not “local journalism”, it is journalism

29th September 2022

This was not a good day for the new Prime Minister Elizabeth Truss.

And that was just one of many local radio interviews, which are collected together here:

 

The interviews were excruciating.

And they were very effective:

One reaction to this round of interviews was to praise local journalists for pressing this hard questions about urgent matters.

But this was not mere local journalism, it was journalism.

And it showed up, by relief, how hard questions about urgent matters are not similarly pressed at the national level.

There are some very fine national journalists, in the so-called lobby and otherwise.

But there is also what can be called an information economy.

A national political journalist is often only as good as their access to political information that is not otherwise available.

Of course: there is a need for off the record and background conversations.

But.

Politicians and their advisers take advantage of the need for a supply of information and so can exclude any journalist who pressed hard questions about urgent matters.

This means that the only broadcast and newsprint journalists who will press on regardless are those who are so established no longer need to be supplied by the information economy of Westminster.

And such established media figures will often have their own agendas and prejudices too.

But for an up-and-coming political journalist there is a constant risk of exclusion from the information economy.

And it is easier to state the problem rather than to fix it.

One possibility is that the news media shy away from using stories where there is nobody on the record.

But if one news media site does this, then it will be at a competitive disadvantage.

*

My own approach to commentary and journalism is to rely as much as possible on public domain sources – asking hard questions of texts rather than of people, and comparing (and contrasting) multiple documents.

But that sort of commentary and journalism can only go so far, and the human elements  of policy and law making need there to be journalists who ask questions of politicians.

And politicians need to face such questions, as it is a good discipline.

Accountability leads, generally, to better government.

So it would benefit everyone involved if the Westminster information economy was made more, well, more efficient.

And, if so, a Prime Minister would not be able to tell the difference between quizzed by a national journalist and a local journalist.

***

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.

The comments policy is here.

Fantasy and Policy

28th September 2022

Today, it is reported, there were almost mass insolvencies of pension funds:

Pension funds – like constitutional law – should not be exciting.

Pension funds should be dull.

Something wrong is happening.

*

There is a sub-genre of fantasy literature which uses the literary device of a portal.

You go though a wardrobe, or over a rainbow, or down a rabbit hole, or past the second star on the right.

And you are then in another world, where certain fundamental elements are different and strange.

Recently British politics has been unusually volatile, but at least it was within certain familiar parameters.

We had the Regency smugness of David Cameron’s administration; the misplaced Victorian earnestness of Theresa May’s; and the Edwardian charlatanship of Boris Johnson’s.

All bad in their way, but you could comprehend what was wrong about the administration and its approach to law and policy.

But the administration of Elizabeth Truss – despite some early but misleading indications of pragmatism – is of a very different type.

*

It must have seemed so simple, only a few days ago.

Treasury orthodoxy could be cancelled easily – and the permanent secretary Tom Scholar was sacked.

Tax cuts could be announced.

And, at a stroke, the British economy would be “unleashed”.

The new chancellor Kwasi Kwarteng told the House of Commons that the government would “release the enormous potential of this country”.

But.

The problem with words like “release”, “unleash” and, indeed, “unchained” is that they are often mere substitutes for policy.

By using such words you are presupposing that there is a thing which is being constrained that only requires the constraints to be removed.

It is, in its way, a form of magical thinking.

And it must have seemed straightforward to the new administration that all that was needed was for tax cuts to be announced and, hey presto and abracadabra, growth would be be produced:

One suspects that even now at Ten and Eleven Downing Street, the Prime Minister and Chancellor do not understand why the Friday statement has had these consequences.

They did the magic things and said the magic words – powerful words like “release” and “unleash” – but what has actually been released and unleashed is not what they wanted.

*

You could say that the problem is that Truss and Kwarteng are being ideological.

But many practical and effective politicians have ideologies: Clement Attlee and Aneurin Bevan with the creation of the National Health Service, or Margaret Thatcher (at least in her early premiership) and Norman Tebbit (whose trade union reforms are pretty much still in place forty years later).

What is different with the current administration – and this is apparent even after a few weeks – is not that it has an ideology, but that it has nothing else.

There is no engagement with the real world as it is, and no understanding that there is even a real world outside with which to engage.

The fundamental elements of their political vision are different and strange: this is Narnia, this is Oz, this is Wonderland, this is Neverland.

We can enter their world, but they have no notion of ours.

*

Portal fantasies often end with the intruding hero(es) eventually coming back to this world – sometimes changed, sometimes not.

The other world usually carries on, just as before – but without the Pevensie children, or Dorothy, or Alice, or Wendy.

Sometimes, however, people from our world get stuck there, perhaps lost or disguised, unable to escape.

We are currently stuck with our fantasy government, perhaps for the next two years until a general election.

Brace, brace.

We are not in Kansas anymore.

***

Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.

Posts like this take time and opportunity cost, and so for more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

***

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.

The comments policy is here.

The curious incident of the “absolutely devastating” Johnson legal opinion is now even curiouser

27th September 2022

You will recall the “absolutely devastating” legal opinion provided for the then prime minister Boris Johnson.

This was in respect of the work of inquiry of the House of Commons privileges committee into whether Johnson had committed a contempt of parliament in respect of his seemingly misleading statements on the floor of the house.

On 1st September 2022, it was reported on a newspaper website:

“An insider said of the QC’s legal advice: ‘It is absolutely devastating.’”

And on the front page of that newspaper’s print edition dated 2 September 2022 we were told:

*

This would have been huge, if true.

The capital-o Opinion in question was this – signed by two barristers as instructed by a leading criminal firm of solicitors.

The Opinion is also dated the same day as the newspaper website article: 1 September 2022.

This must mean that the source of the “absolutely devastating” quote either was referring to a draft form of the Opinion or was providing a view the same day that the Opinion was signed.

We now know that the cost of this legal advice was between £112,700 and £129,500 of taxpayers’ money, as the following tender information was published by the government on 2 September 2022:

(Hat-tip Aubrey Allegretti, here and here.)

This tender information indicates there was no competitive procurement exercise: the government seems to have gone straight to the leading criminal defence firm in early August 2022.

That firm, in turn, instructed two public law barristers (not criminal law specialists).

What is remarkable about this procurement is that the government has its own legal service, with many specialists on matters of parliamentary procedure.

(Which is obvious, if you think about it, given the close working relationship between departments and Parliament.)

There is no obvious good reason, if this was a governmental matter (rather than a matter for Johnson as a Member of Parliament) why this advice could not have been arranged by the government legal service who would have instructed barristers on the Treasury panel.

Indeed, it is odd that this was not done – especially as the junior barrister involved is already on the Treasury panel.

Why were the instructions routed through an external law firm and not the Treasury Solicitor – especially as this is not a criminal law matter?

Who authorised this procurement and use of public money?

*

Indeed, as this blog has already averred, it is not obvious that this was a legal matter at all, let alone a criminal law matter.

The matter is entirely one of parliamentary procedure – and is not thereby justiciable by any court.

In my view there is even force in the argument that the Opinion does not contain any legal opinion.

*

We now know that on 2 September 2022 – the day after the Opinion was dated and the “absolutely devastating” quote was given to the newspaper – that Johnson wrote to the privileges committee:

One curious point here is that he refers to a previous letter to the committee of 12 August 2022 – which is four days after the date of the end procurement law advice, see:

This must mean that the decision to procure external legal advice preceded his letter of 12 August 2022, and so presumably that letter was also informed by the external advice obtained.

You will also see in this letter that Johnson says that “[i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” that he was “placing a copy of the legal opinion in the Library of the House and on the gov.uk website`’.

This is odd.

For as the expert in parliamentary procedure Alexander Horne points out:

There can be no good reason why the Opinion was not just submitted to the committee without publicity – especially if the content of the Opinion was genuinely “absolutely devastating”.

Johnson mentions that he is publishing the letter on the government website [i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” .

But these “ exceptional circumstances” are not particularised, and the committee itself is the means of “public and Parliamentary scrutiny”.

The only plausible explanation that fits the available information is that the Opinion was published on the government website so as to place media and public pressure on the privileges committee.

This would explain how the Opinion went from being finalised, the “absolutely devastating” quote being given to the media, the sending of the 2 September 2022 letter and the publication of the Opinion the same day:Given that publishing the Opinion would mean that legal professional privilege may have been waived (to the extent that the Opinion was covered by legal professional privilege in the first place), and given it would also mean that the Opinion would also not be covered by parliamentary privilege, the publication of the Opinion on the government website was a high-risk strategy.

The only explanation I can think for this is that the Opinion was commissioned by Johnson for the purpose of that publication.

*

As this blog set out, the Opinion is not strong.

This is not just my view as a random legal blogger, but also that of the professor of public law at the University of Cambridge.

Indeed, there cannot be many weaker legal opinions that have ever been published.

That the Opinion was weak has now also been stated by the parliamentary committee itself, in a special report on the Opinion.

The committee in a mere six pages of its report refutes (and not just rebuts) the twenty-two page Opinion.

The committee’s report is, well, absolutely devastating.

The language is extraordinarily strong for such a report – for example, at paragraph 12:

“We consider this concern to be wholly misplaced and itself misleading.”

At paragraph 6, the committee says the Opinion“is founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law”.

And so on.

*

Caption: legal commentators reading the committee report

*

The committee, which is being advised by a former Lord Justice of Appeal who was president of the tribunal service (who can be expected to know about procedural fairness), could not have been more brutal about the merits of the Opinion.

And this is a committee which has Conservative members as well as opposition members.

*

This whole exercise is rather strange.

This blogpost, like the previous blogpost, has not named the lawyers – and this is because we simply do not know what their respective instructions were.

And, as such, it would be unfair to name them in this context.

This is not just libel-speak – and there is nothing in this post which should make you think worse of any of the lawyers involved.

A lawyer is only as good as their instructions.

Instead the criticism should be for Johnson, who appears to have sought to bring media and public pressure to bear on the privileges committee by using public money to procure an opinion to be placed on the government’s website.

There was no obvious reason why this was a matter for the taxpayer, and there is no good reason why the Opinion was published on gov.uk on 2 September 2022.

*

Perhaps the committee will find there was no contempt.

Perhaps the matter will just go away.

Perhaps there will be a political feeling that the former Prime Minister has been punished enough.

Who knows.

But what is certain is that there should be fresh consideration of the procurement of and publication of legal opinions by ministers (of any party).

Something rather irregular happened here, and it is not the sort of thing which should happen again.

***

Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.

Posts like this take time and opportunity cost, and so for more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

***

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.

The comments policy is here.

 

Making the Accession Council inaccessible

26th September 2022

You may recall this blog had a positive post about the broadcasting of the Accession Council:

That detailed post even featured in the House of Commons briefing on the accession of the King:

The broadcasting of the full Accession Council was a boon for the public understanding of the constitution of the United Kingdom, I said.

I even ventured that that further Privy Council meetings could now be televised.

This could be done easily, it seemed to me, as such broadcasts would be in the gift of the King.

Oh what a fool I was.

Of course this welcome shift to transparency would not last.

As reported by the Guardian:

(Highlighting added.)

*

It was too good to be true.

The new King is still the same old Prince of Wales who insisted that his notes to ministers be outside the scope of the Freedom of Information Act.

Prince Hal has not become Henry V.

This is not a bright new morning of royal openness, but a resumption of the tight controls of information that we are used to.

This is such a shame.

The crown had an opportunity to throw obscure parts of our constitution into public gaze, to balance the usual focus on Westminster and Downing Street, to reveal the hidden wiring.

The King had an opportunity to use his control of what can be broadcast to show his engagement with process and practice.

And now, the cloak is too pulled over again.

Oh well, it was good while it lasted.

***

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.

The comments policy is here.