Author: David Allen Green

Being duly diligent about the phrase ‘due diligence’

23rd February 2022

Another day, another phrase for us to examine.

Today the phrase is ‘due diligence’  – a phrase that appears to be used in politics by those hoping it means something that it does not.

Here is the example from today:

The phrase is a nod-along word in politics, something said to reassure the listener.

It sounds impressive, even formal.

But.

Those who invoke the phrase need to be able to explain what they mean by it.

And it seems they cannot:

The phrase – to state the obvious – comprises two words.

Taking the second word first, it means that a person is being careful in respect of a certain matter: [x] is being diligent.

The first word ‘due’ then qualifies that diligence, so it means that person is not only being careful but that the person is being appropriately careful in a given circumstance: [x] is being duly diligent.

And so, anyone claiming to be duly diligent needs to be able to explain exactly how they are applying their diligence in a given situation.

In commercial and corporate legal practice, what constitutes being duly diligent can vary according to the nature of the investigation or inquiry in hand.

Some issues will require anxious scrutiny while others warrant less intense scrutiny.

And once the lawyers have done their ‘due diligence’ – that is, been duly diligent – they can advise their clients on the risks of a certain transaction or other course of action.

In all cases, those being duly diligent will be able to not only assert they have been careful but how they have gone about being careful.

So, coming back to Boris Johnson’s spokesperson and their buzz phrase of the day: what did they mean by ‘due diligence’?

It should mean that the Conservative party has not only been diligent in respect of donations to the Conservative party, but that the Conservative party also has method in its diligence: that certain questions have been asked and that certain risks have been assessed.

That the Conservative party has been – well – duly diligent.

And if the party has been duly diligent it then should be able to explain what that means in these circumstances.

For if that cannot be explained, it indicates that nothing is actually meant by the term – and it is mere flapdoodle.

And we can work this out by ourselves being – well – duly diligent about those who use the phrase ‘due diligence’.

https://twitter.com/davidallengreen/status/1496480334363435008

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Thinking about “sanctions”

22nd February 2022

Let’s consider the word ‘sanctions’.

The word is in the news because of Russian imperialist aggression against Ukraine.

(And yes, what Russia is doing is imperialism – the notion that only the English can be imperialistic is just another way of being Anglocentric.)

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One common response to this aggression is to demand ‘sanctions’.

A demand, in effect, that ‘something must be done’.

Those demanding sanctions may not have any clear idea – or, indeed, any idea -as to what should be done as a sanction or what effect it may have.

It is enough, for them, that they are demanding ‘sanctions’ – almost as a form of political therapy.

A thing to call for, instead of admitting that there is little or nothing that can actually be done – at least short of a military (mis)adventure which would, in turn, likely be a fiasco.

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In reality, ‘sanctions’ rarely work.

They are the Yellow Cards of international affairs.

And, as in football, such Yellow Cards rarely deter – still less eliminate – foul play.

They are instead little more than a cost of business.

In practice – and I have advised as a lawyer on sanctions – they are usually business inconveniences and irritants that can be addressed and navigated.

There are many creative and ingenious ways with which a ‘sanction’ may be complied with.

Any sanction that would actually have the desired political effect would adversely affect the sanctioning state as well as the sanctioned state.

And this is because of the nature of sanctions in an economically interdependent world.

Unilateral commercial relationships are rare and so – almost by defintion – an economic sanction will have domestic effects as well as on the sanctioned adversary.

And so it unlikely that the United Kingdom would sanction Russia in a way that would significantly disrupt the flows of Russian money into London.

But.

Serious sanctions can be done – as Germany has impressively shown today with reconsidering Nord Stream 2 – although perhaps this is not a ‘sanction’ as such but a fundamental (and sensible) reconsideration of energy policy and strategy.

And that will hurt Germany – yet they are willing to take the hit.

The United Kingdom has instead merely talked the talk of tough sanctions – and so today’s announcement of a ‘package’ was unimpressive.

It is always easier to talk tough sanctions than, well, convert that tough talk into meaningful sanctions.

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One response to such scepticism about ‘sanctions’ is to ask: what else can be done?

Some even resort to saying ‘sanctions’ would have ‘symbolic’ importance.

But this is akin to ‘enshrining in law’ nonsense.

What can be done is to be wary of this form of magical thinking.

To realise that we risk misleading and bewitching ourselves.

To realise that sanctions, as with legal prohibitions, are not magical spells.

And to accept the stark hard truth that – unless we place ourselves at a severe disadvantage, or risk military (mis)adventure – there is little or nothing that can be done.

To admit to our own political impotence.

We may as well ‘tut’.

But.

Because we do not want to do that, we will blithely demand ‘sanctions’ instead.

For something must be done.

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The constitutional significance of today’s delayed cabinet meeting

21st February 2022

Something unusual happened today.

A planned cabinet meeting was suddenly postponed with ten minutes to go and – this is the important thing – this was done before the glare of the public.

The reason appears to be a policy row between the Chancellor of the Exchequer and the Health Secretary.

Before we look at why this is unusual – and what it signifies constitutionally – let us first look at what is not unusual about this.

It is not unusual for cabinet ministers to disagree – even about major policy issues.

Such disagreement is routine – and it is even to be expected, especially between a finance department and a spending department.

And because such disagreements are a commonplace, there are mechanisms in place to resolve these tensions before they become public contradictions.

One mechanism is ongoing informal (and sometimes even formal) exchanges between the Exchequer and the other department.

Another mechanism is the system of cabinet committees and sub-committees where differences are discussed and agreed positions arrived at – sometimes under the chair of the Prime Minister (or Deputy Prime Minister).

And the third mechanism is the assertion of prime ministerial authority (in theory ‘cabinet collective responsibility’ – where the defeated Chancellor or minister just has to to take it – or leave the cabinet.

Here think about Michael Heseltine’s dramatic departure from Margaret Thatcher’s cabinet over the Westland political drama.

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Today, however, none of these mechanisms appear to have worked.

And so we had the undignified public difference, and a full cabinet meeting suddenly had to be postponed.

The ongoing informal (and sometimes even formal) exchanges between the Exchequer and the health department seem to have failed.

The system of cabinet committees and sub-committees seem to have failed.

And prime ministerial authority also seems to have failed – indeed the Prime Minister seems to have been unaware of the difference.

Something is wrong – seriously wrong – in the business of government for this row to have manifested itself publicly today with the real effect of an unexpectedly delayed cabinet meeting.

It is a signal – and it signifies things may not be well with the constitutional processes that regulate the common differences between Whitehall departments.

And that, from a constitutionalist perspective, is a worrying signal indeed.

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Wokery and law and policy

18th February 2022

Back in the 1980s there was something called the ‘loony left’.

It was a general smear against the Labour Party – based on what were very few actual examples from a few left-wing politicians, mainly in local government.

As a political tactic, it was very successful.

But one problem for the-then governing Conservative party is that some of that party’s leaders actually believed it was true.

They believed there was actually a substantial thing called the ‘loony left’.

And this was part of the reason after 1987 leading Conservatives nodded-along with the ‘community charge’ – or ‘poll tax’ – so as to make these ‘loony left’ local authorities more ‘accountable’.

It is also why, around the same time, we ended up with the vile Section 28.

Government ministers in the late 1980s, and their political and media supporters, took seriously the ‘loony left’ political scare tactic.

And atrocious legislation and policies then followed.

The ironic thing was that the ‘community charge’ that was intended to counter ‘loony left’ councils did far more to bring down the Thatcher administration than it did to undermine any left-wing councils.

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Now, it is happening again – but CTL+F ‘loony left’ and replace with ‘wokery’.

As before, the phrase is a political tactic.

And also as before, there are government ministers (and their media and political supporters) who are taking such things seriously.

The sheer lack of proportion is well described by the Conservative former Lord Chancellor David Gauke in this New Statesman article.

As Gauke avers, it is the current government and not ‘the woke’ that “has attempted to illegally suspend parliament and threatened to break international law. Brexit was always a huge geopolitical error that weakened the West, but the UK government is implementing it in a way that creates additional tensions with our closest allies. It is also a government that appears to think the Prime Minister is above the law.”

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On the back of this facile ‘anti-wokery’ may come legislation just as illiberal and misconceived as Section 28.

It may even lead to colossal policy errors like the ‘poll tax’.

And as with the 1980s, the fundamental problem will be that right-wing populists believed in the turnip-ghosts they had conjured up to scare themselves and voters.

That is why the speech of cabinet minister Oliver Dowden against ‘wokery’ is so dangerous – including for the Conservatives themselves.

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The coming storm

17th February 2022

Today and tomorrow there are severe storm warnings for the United Kingdom.

Brace, brace.

And these storms are a convenient – if not perfect – analogy for what is happening in our constitutional affairs.

As it happens we have a prime minister and cabinet secretary under police investigation.

We have a prime minister who, no doubt, will seek to stay on in office even if he is fined and found to have broken the law.

We have a Queen – of whom I am personally a fan, even though I am a republican – who is 95 and who has one son who has settled a case in notorious circumstances and a heir who is facing police investigation over cash-for-honours.

We have a delicate situation in the north of Ireland and the possibility of the Good Friday Agreement coming under immense strain.

We have a Brexit agreement with the European Union which the very government that negotiated it is disavowing.

We have government ministers deliberately – joyfully – stoking culture war and divisions.

We have the Metropolitan Police leaderless and deep in scandal.

We have increasing inflation and an imminent cost-of-living crisis.

All this – and there is a realistic prospect that Russia is about to invade a European country.

And nobody knows how any of this will end.

Brace, brace indeed.

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Public interest litigation against public bodies

16th February 2022

There are two ways by which those with public power will act lawfully.

The first is self-restraint: that ministers and officials will act lawfully because, in essence, they want to do so.

The second is by enforcement: that ministers and officials who act unlawfully are open to challenge in the courts and can also face action from the police or other regulatory bodies.

So: if not the first, then the second.

But hopefully the first, which is better for everyone, apart from public law litigators.

The problem is what happens when ministers and officials do not care for self-restraint?

Then we have to go to the second stage, all too quickly.

But then there are new problems.

Who decides, for example, which cases to litigate?

How are those challenges to be financed?

And what if there is nobody in a position to litigate a case?

What is there – ultimately – to stop lawless behaviour by those with public power?

These questions are important – and they are not easy to answer.

One solution is to have non-governmental organisations litigate these cases, in the public interest.

But this brings new problems.

Pressure groups can have their own agendas – and some see litigation as an aid to fundraising and campaigning, rather than a thing in itself.

(When I was legal adviser to a pressure group party to a case that went all the way to the supreme court, I was careful to ensure that there was not a whiff of any ulterior motive and that the focus – correctly – was on the litigation.)

Too many pressure groups litigating elides the distinctions between politics and law.

And some may be tempted to blame the pressure groups.

But.

That is to partly see the problem the wrong way round.

The primary reason why so many non-governmental organisations are litigating is because of problems with those with public power.

The pressure groups in court are (at least) as much a consequence of poor quality policy-making and rule-making by ministers and officials.

In essence: better quality policy and rule-making will mean fewer subsequent legal challenges by pesky pressure groups.

But that would mean ministers and officials facing up to their own failings.

And it so much more easy to blame the pressure groups instead.

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Guiffre v Andrew – an explainer about civil claims, and why they usually settle

15th February 2022

Today the news broke that there had been a settlement in the claim brought by Virginia Guiffre against Prince Andrew.

For non-lawyers, such a settlement may have seemed a surprise.

This post explains why almost all civil claims settle – in America as well as in England.

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In general terms, a civil claim is when one party sues another party.

This is opposed to say when the state prosecutes a party – where the process often ends in court for a trial, or (if there is an early guilty plea) at least for sentencing.

In effect, party A wants a remedy from party B in respect of a legal wrong.

In many cases, it is bleedingly obvious to party B (and party A) whether party A actually has a case or does not have a case.

And in those circumstances either party B provides a remedy or party A does not take the case any further.

But.

There will be cases where party A and party B have different views as to the merits of the case, or as to what they would be prepared to offer and accept for the case to settle.

And so a type of choreography begins.

The civil litigation negotiation dance.

To non-lawyers, it may seem that the court – and a trial – is central to the process of a civil claim, and that a hearing and a trial is the natural end-point.

And that any departure from this supposed norm is somehow incorrect.

But in most cases, the court process provides merely the parameters of a negotiation between the parties.

Each party will seek – strategically and tactically – to use the court process to strengthen their negotiating position, or to weaken the other side’s position.

Both sides – or at least their lawyers – will know this from the beginning – and will game-plan accordingly

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In the case of Andrew, several unconvincing (indeed desperate) technical and jurisdictional defenses were mounted.

And Guiffre’s lawyers, in turn, had to dismantle each defense.

Andrew and his lawyers never seemed to emphasise a substantive defense, on the facts.

So, when all the technical and jurisdictional defenses were lost – and as Andrew’s substantive defense was not being robustly promoted – Andrew and his lawyers were placed in a very weak negotiating position.

And so, Andrew and his lawyers settled on disadvantageous terms.

Guiffre and Guiffre’s lawyers did a very good job.

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Sometimes civil cases do not settle.

Sometimes parties are unrealistic or irrational.

Sometimes there is a wider point to establish – for example the ownership of a property right.

Sometimes – rarely – there is a genuinely novel point of law that means neither side knows the strengths and weaknesses of their case.

(And sometimes in England and Wales, special rules about legal costs may mean a party has to go to trial as they are trapped by onerous costs consequences if they settle.)

But usually, civil litigation is about deal-making – though deal-making in a particular context.

It is about leverage, choosing terms of engagement, logistics, tactics, and strategy.

The Art of Law, as Sun Tzu would have put it.

Yes: some may enjoy the theatrical glamour of the criminal courts.

But for others (including me) it is civil litigation which holds the most interest.

It is like the game of chess, but with correspondence, evidence, pleadings and, sometimes, even law.

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Solidarity with university and college law lecturers

14th February 2022

I have a honorary lectureship at a law school and, although that is not a ‘staff’ role and I am not a union member, it does not seem appropriate to break the ‘digital picket line’ today, as my colleagues are on strike.

As such I will do what I can – little as it is – and respect my colleagues and not commentate on legal matters today.

Back tomorrow.

Today a “senior ally” of the Prime Minister appeared to place improper pressure on the police

11th February 2022

This was an interesting tweet from earlier today:

So much to unpack in this.

But perhaps the most striking thing is that such an utterance was made at all.

The journalist is experienced and well-regarded, and so we can safely assume this was said by someone.

Journalistic convention means “senior ally” could mean a range of people – including Boris Johnson himself – but it would be someone significant.

And what is this “senior ally” doing with this speech act?

Well.

It appears that they are seeking to influence the police investigation.

Indeed, in this context, the statement quoted could even amount to an attempt to intimidate or otherwise wrongly place pressure on the police.

You may remember that the Prime Minister said that there would not be “a running commentary” on the police investigation.

Well, this quoted remark is more of  “a getting carried away” commentary.

The correct position for the police would be to disregard such a statement – though it may irk them into imposing a sanction just so to show their independence.

And the correct position at Johnson’s end would be for a “senior ally” to have not said this at all.

But looking at the two Swinford tweets above, you get the sense that this is some “barrack-room” (or “cabinet-room”?) non-lawyer coming up with some clever-clever line – though one which would not survive contact with legal reality.

Such spinning and framing may work with the lobby, and thereby influence media processes, but it will not work with a legalistic process.

Wrong tool, wrong job.

Since that reported statement, it would seem wiser “allies” are aware of the unfortunate impression that statement gave:

That Downing Street even had to put out such an assurance is, by itself, telling.

It tells us that there are some in Number Ten who realise the legal danger the Prime Minister is in – and that effectively taunting the police is not a sensible tactic.

Perhaps this strange moment will be forgotten – but what may linger is the sense  that Johnson – either through his “senior allies” or otherwise – has a lack of seriousness about his legal peril.

That grave problems can be got out of by such desperate expedients.

Johnson and his “senior allies” should brace, brace.

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The Resignation of a Metropolitan Police Commissioner

10th February 2022

This evening the Commissioner of the Metropolitan Police announced their resignation.

Good.

This was the senior police officer who supervised the operation that resulted in the murder of Jean Charles de Menezes and who obstructed the work of the Daniel Morgan inquiry.

This was the senior police officer who acted more like a shop steward for their police officers rather than the people’s commissioner of the police.

They were forced to resign.

Good.

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But.

There is a problem here beyond the failings of this one senior police officer.

A structural problem about how the Metropolitan Police is a law unto itself – an effectively ungovernable mass of individuals permitted to routinely inflict coercive force on others without any meaningful accountability.

Yes: it is a Good Thing that the police are not under the direct power of any minister or other politician – that the police have absolute operational independence.

But this absolute operational independence should not be at the cost of an absolute lack of accountability.

Power tends to corrupt, and coercive power tends to corrupt absolutely.

As and when there are failings of the Metropolitan Police there is a mix of defiance (the “thin blue line” or “not in their shoes”), evasion and misdirection, and sometimes outright misinformation.

Any response, in fact, other than accepting and owning mistakes.

And these are the officers who can inflict their coercive powers on others on the basis of mere ‘reasonable suspicion’ – but refuse to be accountable to the public even on the basis of virtual certainty.

How do you solve this problem?

How do you have a police force that is operationally independent of the government – but also does not become an unaccountable abuser of its own powers?

Who should watch the watchmen – and how?

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