Author: David Allen Green

‘Regardless of Brexit’ – why bad policy-making is a more serious problem than Brexit

28th September 2021

Over at the Financial Times today there is an outstanding piece of journalism (again) by Sarah O’Connor.

In this article she explains why temporary/emergency migration schemes can be misconceived:

‘But it’s not always that simple. It is common for migrant workers to borrow money to pay for visas, transport and recruitment fees, which makes them vulnerable to exploitation. In addition, unlike under the EU’s free movement of labour, they are usually tied to a specific employer or recruiter which makes it hard for them to leave if they are treated poorly. As a result, the schemes can exacerbate poor pay and conditions in some sectors and calcify employers’ dependence on migrants.

‘One study by the US Economic Policy Institute concluded: “We cannot point to one historical example in which a temporary labour shortage has been remedied with a temporary labour migration programme, and then employers returned to hiring local workers.”

‘A favourite aphorism of migration experts is that there is nothing so permanent as a temporary migration programme.”

The article should be read in full here.

And then, setting out other examples, she avers:

‘None of this was inevitable. If the government had really wanted to improve the quality of jobs in the food and transport sectors, it could have done so regardless of Brexit.’

*

And on Twitter, another insightful commentator Dr Anna Jerzewska set out the following thread:

And today Jerzewska correctly comments on O’Connor’s piece:

*

There are purists who will say that any Brexit would be bad, for there was no way the process of the United Kingdom leaving the European Union could have gone well.

To an extent, the purists are correct: there was no way such a fundamental shift to settled commercial, policy and legal relations could go uniformly well.

But.

There is no reason why Brexit had to be done this botched way.

And this is not just the captaincy of hindsight.

(For example, in 2017 I set out some practical suggestions for how Brexit could be done better.)

Yet for political reasons, Brexit was done in a rush and with no planning or real thought (that is, with no real policy) as to what post-Brexit arrangements should be put in place.

And it is this policy failure – literally, the failure to have a policy – which is, alongside Brexit and Covid, the cause of so many of the current discontents and disruptions.

What Brexit is revealing and exposing are the policy failures of successive government, and especially recent governments.

Like discovered checks in chess, things have moved that show deep vulnerabilities that had hitherto been hidden.

And because the post-Brexit government is not serious about policy, and has no grasp of dealing with complex situations, we get expediency and bluster instead.

*

Perhaps – like a policy equivalent to a market adjustment – a new group of politicians will now emerge to supply the policy seriousness that is now demanded.

This would be like how in many wars, new worldly commanders come to the fore to replace the clumsy peacetime generals who make the initial mistakes.

Perhaps.

But unless we soon have a generation of politicians that have the measure of the practical problems facing the United Kingdom then there can only be more chaos and crisis-management, instead of planning, thought and policy.

Brace brace.

*****

This daily blog needs your support for it to continue.

If you value this free-to-read and independent legal and policy commentary on Brexit and other matters please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of £2 as a one-off, or of £4.50 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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.

Comments will not be published if irksome.

Laws are to be suspended and the army is to be called in – and why we should be concerned when activating the law of civil contingencies becomes a civil necessity

27th September 2021

Once upon a time it would be sensational news that the army was to be called in and that laws were to be suspended.

It would indicate, perhaps, something about either a failed state or an unforeseen emergency, or both.

As it is, the news seems almost commonplace – and that it would be more exceptional nowadays for the news to be less sensational.

The laws that are to be suspended are competition laws – which (we are told) would otherwise prevent petrol companies from coordinating with each other.

I am not an energy law specialist – though I know a little about competition law – and it would be interesting to know exactly how current competition laws would prevent coordination in the current situation.

This law-suspension exercise has the grand name of ‘activating the Downstream Oil Protocol’.

*

‘Dispatch War Rocket Ajax.’

Flash Gordon screenplay, 1980

*

And the official statement is here, and it includes this:

‘Known as The Downstream Oil Protocol, this step will allow Government to work constructively with fuel producers, suppliers, hauliers and retailers to ensure that disruption is minimised as far as possible.

‘The measure will make it easier for industry to share information, so that they can more easily prioritise the delivery of fuel to the parts of the country and strategic locations that are most in need.’

As competition law in this respect is about preventing what would otherwise be cartel behaviour, then it would appear that the fuel industry want to (or need to) do something between themselves that would otherwise carry potential legal risk as cartel behaviour.

Perhaps more will be come clear on this as the protocol is activated, though it seems such relaxations of competition law have been done before in other recent emergencies:

If this is what is being done, we should note that the relaxations – or suspensions -of law do not have any real parliamentary oversight or control.

*

And now the army.

(Source)

But as this news report explains:

“It is understood that it would take up to three weeks to fully implement, because some of those mobilised may already be on other deployments and others could be reservists.’

And so, by the time the army arrives, it may be too late – and it certainly is not something that is intended to happen in the next few days.

This manoeuvre is known, it seems as activating ‘Operation Escalin’.

*

‘Dispatch War Rocket Ajax.’

Flash Gordon screenplay, 1980

*

Just as constitutional law should be dull and it is not a good sign when constitutional law is exciting, the same can be said for the law of civil contingencies.

It is not normal for laws to be suspended and for the army to be used for civil matters – and it should never become normal.

But.

The various problems facing the United Kingdom mean that what are civil contingencies are becoming civil necessities.

Brace brace.

*****

This daily blog needs your support for it to continue.

If you value this free-to-read and independent legal and policy commentary on Brexit and other matters please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of £2 as a one-off, or of £4.50 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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.

Comments will not be published if irksome.

The government proposes a Christmas gift for emergency visa workers: a deportation order on or after 25 December 2021

26th September 2021

Ebeneezer Blackadder:
In fact, there is something in your stocking, Baldrick, something I made for you.

Baldrick:
Ah, well that’s the best kind of gift, Mr. B. What is it?

Ebeneezer Blackadder:
It’s a fist. It’s for hitting people with. See?

– Blackadder’s Christmas Carol (1988)

*

The government’s proposal was daft to begin with.

An extraordinary proposal, even for this government.

And just in case you would not believe me, here is the BBC tweet announcing it – and the BBC’s name is good upon ’Change, for anything it choses to put its name to.

The necessary implication of the government’s proposal is that by automatic operation of law these lorry drivers who will deliver our Christmas goods and these poultry workers who will provide the Christmas turkeys will become illegal aliens at the stroke of midnight on Christmas Eve.

What a Christmas present for those who choose to come over here to provide services, goods and food for those of us in Great Britain.

The following tweet on this is (I think) intended as satire:

But as Zoe Gardner observes, it it not far off the actual legal position:

She is right: that would be the legal position on Christmas Day.

*

And as this blog averred yesterday, there is no reason to believe this quick fix will work in any case.

Let us remember what happened last year.

There is thereby no particular reason to think there will be a rush of workers wanting to help Great Britain out at this time of need.

And so the proposal may become an(other) example of the post-Brexit government discovering that the many problems created by Brexit are not capable of quick easy solutions.

Inviting such workers on terms where – once they have delivered Christmas goods in their lorries and helped provide the turkeys for Christmas dinners – they will literally become illegal aliens at the strike of midnight – is a thing not even Charles Dickens would have imagined.

To adapt Blackadder:

Ebeneezer Blackadder:
Thank you for helping save the British Christmas, there is something in your stocking, something I made for you.

EU migrant worker:
Ah, well that’s the best kind of gift, Mr. B. What is it?

Ebeneezer Blackadder:
It’s a deportation order. It’s for deporting people with. See?

*****

Thank you for reading.

This daily blog needs your support for it to continue.

If you value this free-to-read and independent legal and policy commentary on Brexit and other matters please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of £2 as a one-off, or of £4.50 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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.

Comments will not be published if irksome.

 

“Can any of you drive a lorry?”

25th September 2021

Some magazine covers are for the ages.

This The New European cover captures the current predicament of the current United Kingdom in respect of migration.

On one hand, the government is strident in its attempt to exclude migration.

Brexit-supporting politicians boasted about ending ‘freedom of movement’ as an end in and of itself.

(It always seemed odd to hear those boasts about ending freedoms – as if ending a freedom was something to be proud about.)

The current home secretary loudly wants, as a matter of policy, to deter cross-channel migration – a policy aimed at and appreciated by those who clap and cheer at such things.

And on the other hand, we not only have damaging self-inflicted labour shortages – we also now have a significant reversal of policy.

The United Kingdom government has realised – in perhaps the first of what will be a telling sequence of realisations about Brexit in reality – that ending freedom of movement causes serious problems as well as prompting claps and cheers.

*

One of the causes of this situation is that that those who wanted to suddenly and drastically end migration had no grasp of what would happen in practical, messy reality.

Brexit was (and remains) a political attempt at treating a complex problem as a simple problem.

And so we keep bouncing between the fantastic realm of slogans and the mundane world of reality.

Here the government’s reversal of some visas (the applications for which will be tied up in red tape) may not even work as a policy change.

If so, then such an abrupt reversal may not be enough to solve the problem this government has created for itself – and for us.

And if there is to be a sequence of realisations, where Brexit slogans – one can hardly call it an ideology – do not match Brexit reality, then the government will find that quick-fix reversals will not work either.

It is one thing to realise that reality does not match up with your slogans, but it is another to realise that no policy reversal will match up to the policy mistake you have made.

And so we may end up with a bunch of stressed, washed-out, desperate and directionless politicians – facing the question: can any of you drive a policy?

*****

This daily blog needs your support for it to continue.

If you value this free-to-read and independent legal and policy commentary on Brexit and other matters please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of £2 as a one-off, or of £4.50 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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.

Comments will not be published if irksome.

The Law and Politics of triggering Article 16

24th September 2021

So the United Kingdom government is again contemplating triggering Article 16.

A recent post on this blog set out what – at law – this means.

In essence: triggering the article means a formal process will begin which may enable the United Kingdom and/or European Union to take ‘safeguard’ measures to protect the operation of the Northern Irish protocol.

On the face of it, Article 16 is not about ‘suspending’ the Northern Irish protocol but about repairing and thereby protecting the functioning of the protocol.

All because Article 16 can be ‘triggered’, that does not make it a gun.

But.

Law and politics are different things.

And sometimes legal processes can be commenced as a cover for (or as an accompaniment of) political manoeuvres.

This possibility was highlighted last week by the sagacious Steve Peers:

Maybe the European Union too would welcome the triggering of Article 16 so that it can move to a position that it may not be to adopt without such political and legal cover.

Maybe.

But even taking this political possibility at its highest, there remains the fact that the Article 16 process in and of itself is not intended to be a route for suspending the protocol but for (as it says expressly) safeguarding it.

And it is against this background we come to yesterday’s infantile tweet from the United Kingdom minister David Frost:

Or: please answer the telephone, please.

As Frost was the United Kingdom politician who actually negotiated and endorsed the agreement containing the protocol, it is an especially pathetic plea.

And those in Northern Ireland who benefit from access to the single market, while the rest of the United Kingdom face all manners of shortages, may not agree that the protocol is having a negative effect.

(And also the ‘clearly’ is also a tell – politicians tend to use the word when a thing is not clear.)

But the first sentence of the tweet looks as if the government is seeking to frame the issue as meeting the seriousness criterion for triggering Article 16.

Maybe they will.

Maybe.

*

If the United Kingdom government triggers Article 16 – and the United Kingdom government has done dafter things regarding Brexit – there will no doubt be claps and cheers.

And – and this should not be discounted – the Article 16 process could result in a political deal.

But what is not intended to happen is that the process, by itself, leads to the suspension of the protocol.

And if that is what the United Kingdom government is banking on, then this will turn out to be another needless misadventure in the story of Brexit.

*****

If you value this free-to-read and independent legal and policy commentary on Brexit and other matters please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of £2 as a one-off, or of £4.50 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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.

Comments will not be published if irksome.

“I’ve always thought that a free trade deal with the U.S. would be difficult” – and what this Prime Minister’s falsehood tells us about law and policy

23rd September 2021

Once upon a time a Brummie solicitor and pundit averred that a post-Brexit trade deal with the United States was ‘in the bag’.

That Brummie solicitor and pundit was not me – though I did have fun with this boast in a Financial Times piece.

Jones was not the only figure to assume that a post-Brexit trade deal with the United States would be easy.

Almost all Brexiters who had an opinion on the matter assumed that such a trade deal would be a given.

And one such Brexiter was the now prime minister Boris Johnson.

But now he denies he ever said it.

Here, this short video should be watched in full.

*

Shameless stuff.

*

There are at least two issues here.

The first was the readiness of Brexiters to assume international free trade deals were easy – that they would naturally follow from Brexit with the United Kingdom having a fully independent trade policy.

This sentiment may be derived from cod-historical notions about Victorian Britain – where it is imagined that the likes of Richard Cobden would pop across the channel to negotiate a free trade deal and still be home for tea.

In the mundane world of 2021 – as opposed to the giddy biscuit-tin world of nostalgic reenactments – new trade deals are rarely quick or easy, and often may not be worth having at all.

*

The second is that the prime minister knows he can say things that contradict what he said before and that few, if anyone, will care.

And this is despite the internet making it easier to expose such lies and other discrepancies.

Other than for the sake of it as a public good, there is no real point in setting out the falsehoods.

This is one thing that George Orwell perhaps did not correctly anticipate in Nineteen Eighty-four – there would be no need to employ the likes of Winston Smith to go back and change the historical record, as it would make no difference as to whether people believed new false claims.

The future instead turned out to be President Trump and others waving away such inconvenient truths as ‘fake news’.

For as this blog has said many times: exposing lies is not enough when people do not mind the lies.

So we are now in a bubble of faux-historical sentimentality and hyper-partisanship, where the truth of the historical record makes no difference.

You may think the bubble cannot carry on, but yet it does.

It is the paradox of our age: it has never been easier to expose a falsehood, yet the falsehoods continue to have purchase.

And from this many of our current problems in law and policy follow.

**

Please do support this liberal constitutionalist blog about law and policy – and do not assume it can keep going without your support.

If you value this daily, free-to-read and independent commentary – both for you and others – you can support through the Paypal box above, or become a Patreon subscriber.

Each post takes time and opportunity cost.

***

You can opt for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

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.

Comments will not be published if irksome.

Are President Biden’s comments on ‘the Irish Accords’ a life line for the Human Rights Act?

22nd September 2021

Yesterday United States President Biden spoke about his concern about a possible change to what he called ‘the Irish Accords’.

From the context of the question and answer, Biden meant the Good Friday/Belfast Agreement – though the question was framed in terms of the Northern Irish Protocol of the Brexit withdrawal agreement.

The question and answer are here and you should watch and listen for yourself:

You will see in the tweet above that the estimable Sonya Sceats, the chief executive of Freedom from Torture, avers that the exchange is a life line for the Human Rights Act 1998.

Is she right?

And what is the connection between that exchange and the Human Rights Act 1998?

Here we need to see what the Good Friday/Belfast Agreement says.

In respect of the European Convention on Human Rights (ECHR), the agreement says the following:

‘There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including […] the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission [and] arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland’

and

‘The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency’.

*

These passages are explicit: the ECHR is a ‘safeguard’ and the ECHR has to be enforceable in the courts of Northern Ireland.

The agreement does not expressly mention the Human Rights Act 1998 – not least because that legislation had not yet been passed at the time of the agreement.

But one of the things that the act does in respect of Northern Ireland – as well as for the rest of the United Kingdom – is to make the ECHR enforceable directly in the courts.

This is instead of requiring a party seeking to rely on the ECHR to petition the European Court of Human Rights in Strasbourg, as was the position before the act took effect.

Of course: you do not – strictly – need the Human Rights Act 1998 to be in place to fulfil the express requirements of the Good Friday/Belfast Agreement, as long as the ECHR remains enforceable locally in Northern Ireland.

But if the Act were to be repealed – which is a long-term goal of the new lord chancellor and justice secretary Dominic Raab – then there would need to be replacement legislation in place the very day the repeal took effect for ECHR rights to remain directly enforceable in the courts of Northern Ireland.

*

So does this mean the Human Rights Act 1998 is safe?

I am not so sure.

I averred on this blog when Raab was appointed (and I am sorry to quote myself):

‘And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.

‘If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.’

Having seen the exchange with Biden, I am now wondering if my (dismal) view is correct.

A wise government of the United Kingdom will be anxious not to give the slightest indication that anything related to the Good Friday/Belfast Agreement was up for any change – and continuing local enforcement of the ECHR is an express provision of that agreement.

A wise government, concerned about its relations with the United States, would thereby not touch the repeal of the Human Rights Act 1998 with a barge pole.

It would just take one credible complaint that the Good Friday/Belfast Agreement was at risk, and there would be an international problem.

Repealing the Human Rights Act 1998 would not be worth these risks – especially as it would have to be replaced immediately with legislation having the identical effect in respect of Northern Ireland.

But we do not have a wise government – we have a silly government.

And given the long-term obsession of the new lord chancellor with repealing the Human Rights Act 1998 – and that this may even be a reason for why he accepted his political demotion – one can see the repeal (and its immediate replacement) still going ahead in symbolic form – even if not in much substance.

*

But the politics of symbolism does not just have one direction.

Against Raab’s fixation with the symbolism of repealing the Human Rights Act 1998 is the transatlantic symbolism of doing anything that could remotely affect the Good Friday/Belfast Agreement.

So it may be that Sceats’ view is correct – and the Human Rights Act 1998 is safer than before.

But, on any view, repeal seems an unwise political path to take, given how much politically – and how little legally – is at stake.

**

Hello there –  if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

Please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

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.

Comments will not be published if irksome.

“I’d much rather get a deal that really works for the UK than get a quick deal”

21st September 2021

Just a short post today, to note the irony – or lack of irony – of this statement by the prime minister:

“I’d much rather get a deal that really works for the UK than get a quick deal”

There is, of course, nothing to fault in this utterance – on its own terms.

It is a statement so solidly sensible that, one would think, it is a Good Thing that a prime minister has said it.

But.

This is also a prime minister who rushed through a Brexit deal that he now wants to renege on.

This is also a prime minister who heads a government that seeks to enter quick trade deals by the expedient of dropping demands and agreeing to whatever is offered.

So: the prime minister may have said “I’d much rather get a deal that really works for the UK than get a quick deal” but he is not being sincere.

The context undermines the text.

What he says here (as elsewhere) does not correspond with his or his government’s policy.

His words are instead a rhetorical trick – to explain away failure by a claim to high-mindedness.

All that the prime minister means by “I’d much rather get a deal that really works for the UK than get a quick deal” is that he cannot get a quick deal – or any deal.

Not even for soured grapes.

It sounds statesmanlike and commendable, but is just another excuse from the excuse drawer.

Imagine having a prime minister who expounded such a principle – and actually meant it – and that the principle expounded in turn corresponded to policy?

That would be quite a thing, wouldn’t it?

****

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.

Comments will not be published if irksome.

Advice for new Law students: read the ******* cases

20th September 2021

From time to time lawyers in the media (including social media) are asked for advice by those about to study law.

There is lots of good advice to be had – for the study and the practice of law is hard, and is with most hard endeavours there will be useful tips from those of us who have gone before.

For what it is worth, I have one piece of advice.

(This is not, of course, the only useful advice – but it is the only advice I have to give.)

And this one piece of advice is simple: read the cases.

*

Reading a case can be hard.

Working out why a case was decided in one way – and not another way – is often not easy.

Working out the extent to which anything in a case is an authoritative proposition that can apply to other cases is hard.

Working out whether the [x + y =+ z] that led to a decision in a certain case would also apply when there is only [x + y but no z] is hard.

But to really understand law – at least the law of England and Wales – there is no good substitute for the slog.

And the reward from this slog is profound.

For once you know how a case was decided (and how it was not decided) you have that knowledge for yourself.

Nobody can take it from you.

And so you will have the intellectual tools to answer any essay or examination question.

The alternative is not to read the cases – to rely on, say, lecture notes or what textbooks (or ‘nutshell’ guides) tell you what that case says.

But to rely on such secondary (sometimes tertiary) sources is like directing somebody to a destination based on overhearing someone else’s directions, rather than actually knowing the way yourself.

*

Of course: this is an ideal.

Sometimes limits to time or access to resources will mean that you cannot read the cases for yourself.

Sometimes you will have to rely on what somebody else is telling you what the case means and when it will apply.

Sometimes you cannot (reasonably) be expected to have read the relevant cases.

But you should be conscious that this is not as good as reading the cases for yourself.

And if you read the cases, you will engage differently with textbooks and lecture notes.

Rather than relying on such sources for what the cases say, they become more useful for understanding how cases hang together.

You may find you do not even need some textbooks at all.

You may find that you spot possible errors or misconceptions or oversights in textbooks.

You may even find you spot possible errors or misconceptions or oversights in the judgments themselves.

*

Once you have gutted a case and mastered that case you are in at least the same position as any other lawyer with a view on that case.

A lawyer who has access to a case, and has the time to understand the case, and has taken that time to do so, will be the equal of any other lawyer on that case.

Knowing the case law can thereby be a great equalising – even democratic – force.

*

Other lawyers will give you advice on how to study law – advice you may find more useful than the advice in this post.

Some lawyers will even disdain my advice – often because their previous educations allow them to wing exams confidently.

And some lawyers – me included – will say that the actual practice of law requires many other attributes than the ability and willingness to read a case.

But taking all these counterpoints at their highest, my advice for anyone about to study law remains simple.

Read the ******* cases.

**

Hello there –  if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

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.

Comments will not be published if irksome.

Legal drafting and computer programming – a post in memory of Sir Clive Sinclair

19th September 2021

Some of the best legal drafters you will meet – those who put together formal legal documents such as contracts and acts of parliament – will have a background in computer programming.

This post sets out an explanation for this, from the perspective of an experienced legal drafter, as to why it seems (from the outside) the legal drafting process is similar to the computer programming process.

Of course, this perspective is that of a lawyer and writer – but I hope it is in general enough terms that the comparison it seeks to make is of some wider interest and validity to experienced programmers and others.

(My own coding skills are almost literally BASIC (and some HTML).)

The perspective set out below will be separated out into items, line-by-line, as-a-whole, and stress-testing, as well as a conclusion and a tribute.

*

Items

By items I mean particular symbols or words – the smallest useful things to be typed.

For both the coder and the drafter each item will (or should) have a purpose.

(Even if that purpose is to be deliberately redundant –  we once caught out a copyright infringer because they had duplicated intentionally dud code that could not have been there without naughty copying.)

For the lawyer, each word in a formal legal document has (or should have) a purpose: it has been chosen instead of other words, and also instead of no words at all.

Here there is the ‘rule against surplusage’.

If a legal document says a thing then (it is presumed) that thing is there for a precise purpose.

And if it serves no purpose, then it should not be there.

*

Line-by-line

Here we look at lines of code or clauses (or sections or articles) of a legal document – short sequences of items.

The intention with a line or a clause is that there is a thing meaningful enough to have meaning in and of itself – in effect: a proposition.

That one can look at it and say: that line or clause does this – but not that.

Most coders and lawyers are capable of producing such discrete things.

Certainly any competent lawyer should be able to draft a simple clause: ‘[x] shall do [y] in return for [z]’.

But – at least for lawyers – the difficult thing about drafting is not in composing a single clause but with the next two stages.

*

As-a-whole

The first real difficulty with a legal document – as perhaps with a program – is getting clauses to work together as a whole.

That clause one does not contradict clause two, and that clause three is workable in view of clauses, one, two and four, and so on.

In this way, a legal document is usually complex – and not linear.

Each clause not only has to fit in with the clauses immediately before and after (like, say, a verbal jigsaw) but with every other clause in the document.

If clause sixty does not work with clause five then there is a potential problem.

And so, although some legal instruments are readable – sometimes elegant – they are not linear texts like an elementary short story.

I understand this is also the approach to coding – line 60 of a program has to match line 5.

The goal is therefore to create a thing as-a-whole that is internally coherent.

But.

*

Stress-testing

And this is the second big challenge.

One can have a legal instrument – or a computer program – that is beautiful in its internal coherence, where each intricate point works with other intricate point.

And it still will be useless if it does not work in practice.

For legal instruments and computer programs are (or should be) practical things.

Instruments, not ornaments.

If a contract or an act of parliament fails any test provided by reality – then it is not reality that is ultimately at fault.

And similarly (it seems to me) a program that fails a test provided by reality – then it is also not reality that is ultimately at fault.

I have long thought, for example, that draft legislation should always be published – almost in Beta mode – for stress-testing before any actual implementation.

And that all legislation should be subject to regular testing and review, rather than just being dumped on to the statute books.

*

Conclusion

Of course: as you read the above – just as I typed the above – exceptions and differences will come to mind.

And such exceptions and differences are to be expected – for I am not contending that two things are identical, only that they may be similar, and so I am identifying only points of similarity.

I could have posted a sequence of points of difference, though I do not think that would have been an especially interesting post to read or write.

And, again, I aver that although I am an experienced legal drafter, my coding skills are otherwise limited.

But there is, I think, something in the understanding that legal codes and computer codes may have similarities, and also that there is something in the understanding whether the coding processes that go into both are similar.

If there are similarities, then – in turn – there may perhaps be many things that the two disciplines can learn from each other.

*

Tribute

This post is prompted by the news of the death of Sir Clive Sinclair.

In the 1980s my introduction to programming was the rubber-key BASIC shortcuts of the Sinclair Spectrum 48.

It was by learning how to code that I first developed the skills that, later, made me actually enjoy the drafting of complex legal documents.

‘IF [x] GOTO [y]’ has – at least for me – a lot to answer for.

</tribute>

END

**

Hello there –  if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.

***

You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

****

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.

Comments will not be published if irksome.