Author: David Allen Green

Why ‘how to regulate’ guides are invariably nice and colourful but impractical

25th May 2021

It would be unfair to name the particular public body responsible but a new guide to regulation has just been published.

The guide is lovely to look at.

Pages and pages of colourful graphics, with boxes and arrows.

A well-meaning sequence of platitudinous or vague statements are made which together are to be taken as a guide to good regulation.

The guide is pretty and clever and earnest.

And the guide seems completely useless.

One suspects no better regulation will be made because of it, nor any better regulatory decision.

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The problem is not that, on its own terms, it is wrong.

On its own terms, the guide is quite wonderful.

Like a self-contained and lovingly illustrated code in some invented language like Dwarvish or Klingon or Dothraki.

The obscure illuminated manuscripts of our public policy age.

But the guide – and many guides like it – may not correspond to reality.

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The essence of regulation is practical, not theoretical.

The basic question is: what behaviour or outcome would happen (or not happen) but for the regulatory measure?

How will things actually be different (or the same) because of the intervention (or lack of intervention)?

And will those things really be more desirable than otherwise would be the case?

If the regulatory measure – either a rule or a decision – does not in practice affect behaviours or outcomes as desired, then it may be many things but it fails as a regulatory measure.

So: the best guide to regulation is work backwards from what is happening (or otherwise would happen) and see how that behaviour or outcome can be made to be different (or forced to stay the same) in a way desired.

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The problem with flowchart-based – and also with checklist-based – regulation is that it makes the regulator feel that something is being done.

Like the old joke about the driver who always looks in the rear-view mirror before pulling out – it does not matter what is coming, as long as they have looked in the rear-view mirror they can proceed to pull out.

In so many fields of human activity – from drug-taking to sex work to public health rules for coronavirus and electronic surveillance and public procurement (just to take a few public policy bug bears) – there is a belief that there must be regulations, as something must be done.

The problem with colourful guides on ‘how to regulate’ the process takes priority over practical effect and implementation.

There should perhaps be a new regulator to prevent flowchart-based regulation.

Perhaps it can be called OffChart.

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Why the Daniel Morgan Independent Panel legally can and should disclose the full report to the Morgan family at the same time as to the Home Office

24th May 2021

Today in parliament there was a short debate on the delays in the report in respect of the murder of Daniel Morgan, why there were successive collapses of investigations and prosecutions, and the significance of potential corrupt relationships between the press, the police and private investigation industry.

The link for watching the debate is here – and it is worth watching in full.

You will rarely see a junior minister so obviously unconvinced by their own brief – and there is an apparent contrast between her conciliatory manner and the content of what she had to read out.

(It is not unusual for junior ministers to stand in for cabinet ministers for these urgent debates – though it would have been appropriate for the home secretary to have been there.)

You get the impression that nobody – inside or outside of government – is actually convinced of the ‘national security’ and ‘human rights act’ points being taken to justify the home office’s position.

Indeed, both points seem to be ‘lines to take’ – formulated by some clever central government lawyer – as giving wriggle-room to the home office.

But neither contention adds up.

The panel report is not under the Inquiries Act 2005 – and so the exceptions under section 25 do not apply.

The most charitable explanation I can can conceive is that the government wants to avoid creating a precedent for other non-2005 Act reports being free from the same exceptions.

There are more plausible, less charitable explanations.

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The reason why the report being presented to parliament is legally important (as well as constitutionally appropriate) is that it will give the report absolute privilege in respect of defamation when it is published to the general public.

And although a publication of the report directly to the public by the panel without going through the home secretary and parliament would be an exciting event – and no more than the home secretary deserves – it would not be legally prudent. 

But it is worth looking at the terms of reference carefully on this point – as there may be another way forward in the face of home office obstinacy.

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The terms of reference are here – and they should be looked at in full.

Paragraph 6 indeed provides:

‘The Independent Panel will present its final Report to the Home Secretary who will make arrangements for its publication to Parliament.’

But one sentence in the following paragraph 7 is also interesting:

‘In the meanwhile, it is also envisaged that the Panel will brief the family incrementally, both on the progress of its work and on its emerging findings.’

And so is also paragraph 4(c):

‘…the Independent Panel will…brief members of the family through a final report which would be made available first to the family and then to the public at large’.

In other words: it was envisaged in the terms of reference that, although publication to the world was to be done through the home secretary and parliament, it was open to the panel to share its findings and indeed the final report directly with the family.

(Note the ‘will’ in 4(c).)

I do not know if the panel has shared the findings and the final report with the Morgan family – but not only is there nothing in the terms of reference to prevent the panel from doing this, the terms of reference expressly envisage this being done.

And there would be no greater check on any untoward redactions by the home office than the Morgan family having the original, unredacted report before them.

 

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The Daniel Morgan panel report will be the nearest we ever get to Leveson Part II

23rd May 2021

We have a lopsided view of the bad things that were happening in respect of the media around the turn of this century.

The focus has been on the press – journalistic ethics, newsroom culture and the breaches of the civil and criminal law.

But those did not happen in a vacuum.

What elements of the press did was part of a wider problem, which involved the metropolitan police and the private investigation industry.

Of course, the press took advantage of these relations and was the source of a lot of the money involved.

But there were wrongs being committed on the supply-side of the trade in personal information.

Had the Leveson inquiry continued with its phase two – that was to look at the dealings of the press with the police and so on – then we would now have a more rounded picture of what went on.

But the Leveson inquiry will now never continue to phase two.

And so the nearest we will get to a documented understanding of this supply-side will be the independent panel report on the Daniel Morgan case – a case which goes to the heart of the problematic relationship between the press, the police and the private investigation industry.

It may well turn out to be the best record we will ever get of what then happened – and how so many got away with so many things which they should not have done so.

 

The Crown and the Media – from phone hacking to the Dyson report

22nd May 2021

If anyone doubted the often indirect power of the crown in the public affairs of the United Kingdom then this week’s media news about the Dyson report is a useful reminder.

A reporter fabricated documents so as to engineer an introduction to a member of the royal family and then lied about it.

This sort of ‘blagging’ – as  some of those in the media would call it – was one of what was once euphemistically described as the ‘dark arts’.

And as a result of the exposure of this dishonesty, the future of the BBC (itself founded by royal charter) is now uncertain.

To throw the future of the United Kingdom’s state broadcaster into doubt requires a significant intervention.

It is an example of how the presence of a royal element to a story can electrify things.

And it is not the first time.

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The phone hacking scandal – which affected the press in a way that the Dyson report may affect the BBC – also came about because it had a significant royal element.

In short: the telephones of the royal household were hacked – just as the telephones of celebrities and newsworthy non-celebrities were hacked.

(Hacking was another of those ‘dark arts’.)

But because the target was the royal household, a different part of the metropolitan police became involved instead of those parts of the metropolitan police that the press then had a close (and mutually advantageous) relationship.

This in turn led to a police raid of a private investigator’s office, and the documents then seized in turn were a media-legal time-bomb which exploded when disclosed about the time of the Millie Dowler murder trial.

The story is set out in this thread by James Doleman, who reported on the trials (and with whom, I must add, I disagree on other issues):

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Had the mobile telephones of the royal household not been hacked then it is plausible that – even now – we would not know anything about the real extent of telephone hacking.

Such is the indirect power of the crown in our public affairs.

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No Home Secretary should be using police raids as photo ops wearing a quasi-police uniform

21st May 2021

Under section 1 of the Public Order Act 1936 it is an offence to wear political uniforms.

And section 90 of the Police Act 1990 provides that it is an offence to impersonate a police officer.

But politicians do like dressing up.

Here is a Labour politician – an elected police and crime commissioner in 2017.

His Conservative political opponents were scathing:

But partisanship is the foe of consistency, and so we now have a Conservative politician dressed in quasi-police kit:

The remarkable thing is that the Conservative politician in question is the actual Home Secretary.

We have the Home Secretary dressing up in a quasi-police uniform and going on operations where coercive force is used.

When I re-tweeted a gloss on this significant picture yesterday, I was told-off because the original tweet had got the nature of the police operation wrong:

https://twitter.com/davidallengreen/status/1395657008032931840

The nature of the offence, and of the police operation, is irrelevant.

The Home Secretary could be attending the arrest of the most notorious criminal in the land, and it would not make a difference.

There is something wrong – and crass – about Home Secretaries using such operations as photo opportunities.

And there is something sinister about doing it in a quasi-police uniform.

Not even Churchill did that over a hundred years ago as a similarly opportunistic Home Secretary (and he was more entitled to wear a uniform, as a former soldier):

(And even John Terry had some claim to be able to wear his Chelsea kit in that famous 2012 incident.)

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Exploiting – indeed weaponising – police operations for political purposes is unwise and illiberal – whether the politician is Conservative or Labour or even Winston Churchill.)

It points to the misuse and abuse of law and law enforcement – that certain things are being done not for the straight purposes of justice and due process.

It also speaks to the increasing authoritarianism in our political culture.

There is, of course, a good reason why impersonating a police officer is banned.

And there is a very good reason why in 1936 – of all years, if you think about it – the wearing of uniforms for political purposes was banned.

Nationalistic populist authoritarianism is something to be opposed, not encouraged.

And that, at least, was something Winston Churchill (despite his many manifest faults) got more right than his current day Conservative successors.

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The Daniel Morgan independent panel in effect tell the Home Secretary: ‘you have no authority here Priti Patel, no authority at all’

20th May 2021

Yesterday’s post was about the home secretary making an extraordinary intervention that would delay the long-awaited publication of report of the independent panel on the death of Daniel Morgan.

And then came further news that the panel were refusing to give the report to the home secretary:

This is a splendid and spirited response from the panel to what is an unconvincing attempt by the home secretary to intervene.

And alluding to that infamous parish council meeting, one wag caught it perfectly:

(Though, of course, in that other instance, the recipient of that comment was the one in the right, as this blog then explained.)

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The move by the home secretary may not only fail – it may be counter-productive.

Last week those who followed the Daniel Morgan case were wondering whether the impending publication of the independent panel report would get any press or public attention.

And then our clumsy bullying Home Secretary sought to clumsily bully the independent panel.

Well.

 

Such PR is priceless.Without her intervention, the report may have generated little interest beyond those who had an interest anyway.

Now there is far more interest.

And as someone was quoted in the news report:

“There are no national security issues involved. There are national embarrassment issues.”

If this is correct (and I have no idea) then, thanks to the home secretary, more people will now be aware of this.

Before attempting to intervene, the home secretary should have read the terms of reference of the independent panel – read them, and understood them.

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(With apologies to the great Jackie Weaver)

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The extraordinary intervention of Priti Patel in delaying publication of the Daniel Morgan report

19th May 2021

This is not a conspiracy theory blog.

Conspiracies do, of course, exist – often to cover up cock-ups, for that is usually the only time when any given group of people have the focus and motivation to act in concert.

But a conspiracy is rarely the first notion that comes to my mind to explain any odd state of affairs.

And so, in respect of the 1987 murder of Daniel Morgan, I do not know why he was killed and who killed him.

This is just not safe legal-libel speak: I genuinely have no idea, and I offer no theory.

But what is odd about this murder was the aftermath: a remarkable succession of failed investigations and prosecutions.

Here, again, there may be explanations short of a conspiracy.

Court cases and so on fail all the time, and for various reasons.

And even if those reasons point to systemic failures, often those system failures are not conspiracies but just, well, system failures.

But.

The succession of failed investigations and prosecutions in the case of Daniel Morgan also indicate that there may be concerted wrongful conduct.

And nobody who knows anything about the metropolitan police and their relationship with the tabloid media at the relevant time would be surprised if there had been undue pressure and corruption.

Still: we do not know for certain.

And this is why an independent panel inquiry was set up in 2013 to, as far as possible, get to the bottom of what happened and what, if anything, went wrong.

(My 2012 piece calling for a formal inquiry is here.)

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The panel spent eight years putting together a detailed report.

The eight year period indicates the complexity and perhaps the seriousness of the matters being investigated.

And this long-awaited report was about to be published…

…when in an extraordinary intervention Priti Patel, the home secretary, has delayed its publication.

https://twitter.com/davidallengreen/status/1394982007093043201

 

We even have the remarkable sight of Patel relying on the Human Rights Act as part of the excuse for the delay.

As the panel has pointed out – in an impressively robust statement (which you should read) – there is no good reason for this intervention.

None of the supposed reasons add up, and it appears to me that the home secretary’s stated reasons are mere pretexts.

This is an extraordinary intervention by a politician in an independent inquiry.

And it also may be counter-productive – as it is drawing attention to a report that – even if it were critical – may have had little press or public attention.

After all – as I aver above – few would be surprised that bad things were happening at the time with the police and the media.

So, even if there is something in there which Patel, for political reasons, did not want in the public domain, her delay may be bringing attention to a thing others may have preferred were left not emphasised.

Some commenters believe that the report will be an exposure of the corrupt relationships between the media and the police of the time.

I have no idea.

But many will be even more interested in the report now after Patel’s extraordinary and perhaps clumsy intervention.

And we should hope that the report when published finally brings some justice for the family of Daniel Morgan who have campaigned tirelessly since his death for the truth to be revealed.

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What is Force Majeure? And why is it now being mentioned in the context of Brexit?

18th May 2021

A historian of ideas – probably Isaiah Berlin – once averred that most philosophical systems were ultimately simple affairs.

What made them complicated, it was said, were the elaborate defences and anticipations of objections so as to make the arguments advanced harder to attack or dismiss.

I have no idea if this is true, as I have no head for philosophy, but I have often thought the same can be said for contracts.

Most agreements are also relatively simple – and most of us, every day, enter into oral contracts which are nothing more than ‘I give you [x] in return for [y]’.

Written out, such contracts would not need to be longer than one sentence – a single clause.

What makes a legal agreement complicated – and what can make a written contract go on for hundreds of pages of clauses and schedules – are the provisions dealing with what will happen if one party does not do [x] or the other party does not do [y].

This is because most written contracts are not there for when things go well: they are there for when things go badly.

The more provisions that are in a contract, the more allocations of risk and protections for the parties if there are problems.

For high-value or significant agreements, teams of lawyers will painstakingly (and often expensively) go through every possible and foreseeable eventuality, and will then allocate risk accordingly as between the parties.

There will also be detailed provisions setting out the processes for resolving and remedying problems.

In most circumstances, those provisions will not ever be used.

(As a general though not universal rule, the more effort that goes into putting a contract together, the less scope for genuine disputes later.)

But sometimes a thing can happen to disrupt an agreement that has not been addressed in the agreement.

This disruptive event can have three qualities: (1) it will be outside the control of the parties (else all you would have is a potential breach); (2) it will be outside of the allocations of risk in the agreement (else the agreement already deals with what will then happen); and (3) it will affect the performance of obligations under the agreement (else it would not matter).

In legal language, such a disruptive event is said to ‘frustrate’ the agreement.

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In English contract law, such frustrations often lead to unfair and uncertain results – and every law student will know of the so-called ‘coronation cases’.

Lawyers elsewhere, however, approached this sort of predicament differently and developed the doctrine of ‘force majeure’.

A force majeure event is a thing that (1) is outside the control of the parties; (2) is outside of the allocations of risk in the agreement; and (3) affects the performance of obligations under the agreement.

If the doctrine applies there is then some certainty of what will then happen in the event of a force majeure event – sometimes the consequences can be agreed between the parties, or the consequences may be provided for under the general law.

Force majeure, however, is a residual thing – if the parties have foreseen the particular risk and allocated that risk then the terms of the agreement should take priority.

This means (generally) the more detailed the agreement, the more limited the scope for force majeure.

The analysis set out by me above is from the perspective of an English commercial lawyer but the doctrine also exists in what is called ‘public international law’ – that is the law that regulates relations between countries (and also international organisations):

You will see the public international law document quoted provides that a thing cannot be a force majeure event if (a) it is because of the conduct of the state seeking to rely on it and (b) the risk of it happening has not been allocated.

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What all this means is that it is often difficult in practice to rely on force majeure when there is in place a detailed and specially negotiated agreement.

This is because the parties will have foreseen and addressed most practical problems.

And even if there is a force majeure event, that also does not mean it is a ‘get out of an agreement free’ card – as all that may result is a temporary relief from fulfilling an obligation until the force majeure event is over.

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The reason why force majeure is in the news is because David Frost, the United Kingdom minister responsible for Brexit negotiations, appears to think that force majeure can be relied on to relieve the United Kingdom from its obligations under the Brexit withdrawal agreement and its Northern Ireland protocol.

The news report says:

‘Force majeure is a legal concept through which a party can demand to be relieved of its contractual obligations because of circumstances beyond its control or which were unforeseen.

‘The suggestion is contained in a 20-page letter the UK has sent to the European Commission.’

To which the response should be: good luck with that.

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In practice, any reliance on the doctrine of force majeure by the United Kingdom will come down to two particulars: (1) what is the (supposed) particular force majeure event, and (2) what is the particular obligation that is (supposedly) affected by that event.

Until this is known, one cannot be completely dismissive.

But.

It is difficult to believe that there is any event that (1) affects the performance of a particular obligation under the Northern Ireland Protocol which (2) is not within the control of one of the parties and (3) is not addressed in the protocol.

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And in response to the thread on Twitter on which this blogpost was based, this scepticism was endorsed by Jonathan Jones, who was the United Kingdom’s chief legal official during the Brexit negotiations:

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That the United Kingdom government had not thought through or cared about the detail of the withdrawal agreement was not unforeseeable.

It was, to use another technical legal term, bleedingly obvious.

It is difficult to conceive of anything that could be a force majeure event that is not already subject to the provisions and processes of the Northern Ireland Protocol.

On the face of it, therefore, the resorting to ‘force majeure’ by the United Kingdom looks desperate – a makeweight argument deployed for want of anything more compelling.

There is, however, the delicious legal irony in the circumstances of the United Kingdom seeking to rely on a French legal doctrine used to cure the inadequacies of English law-making.

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Wanted by HMG: Someone to make sense of Brexit

17th May 2021

Some things are almost beyond parody.

The government of the United Kingdom, almost five years after the Brexit referendum, wants help on identifying post-Brexit opportunities. 

The natural response to this is, of course, to laugh like a drain – and to then despair.

But it also worth reflecting on.

One of the strengths (if that is the correct word) of the Leave campaign was that it was primal in its message – and what is primal is usually inexact, if not vague.

And with such primal force, Leave won and the Remainers lost.

Brexit was forced through.

But for every strength there is a weakness.

And at this point of the process, those who have forced Brexit through will say, in effect: ‘what now?’

Those who were opposed to Brexit will scoff and hope that such an implicit admission discredits the cause of Brexit.

But what has power because of a lack of detail will usually not falter because of a lack of detail.

There was never any particularised plan for Brexit: it was instead a political roar of anguish and defiance and (for many) misdirection.

David Frost could go even further and say freely and expressly: we want outside input in identifying opportunities because we do not have a clue what to do next.

Those who supported Brexit would either shrug or nod at the sentiment.

And as a wise person once said: there are no problems, only opportunities – it is just that some opportunities are insoluble.

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The ‘state’ with no clothes on

16th May 2021

When I was young I had an illustrated book about kings and queens – but the one illustration which stayed with me was not any of the formal mannered portraits.

Instead, it was this engraving by the novelist William Makepeace Thackeray:

It still dominates how I think about kingship, queenship and indeed any formality of power.

Strip away the paraphernalia of dominance – not just the garments but also the symbolism and the rhetoric and the concepts – and you just ultimately have people.

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A great deal of what we posit as politics and law – almost all of it – exists only in the mind.

They may well have grave real-world effects – but concepts such as the ‘state’, ‘government’, ‘markets’ and ‘society’ are, just that, concepts.

And without those concepts we are all just as the French king in Thackeray’s engraving.

If everyone suddenly stopped believing in the legitimacy of the ‘state’ there would be little that those with political power could do, other than to resort to coercive power.

But even totalitarian regimes usually make some effort at legitimisation – as resorting to pure repression is demanding and unsustainable in the medium- to longer-term.

The anarchist may well want to ‘abolish’ the state – but the ‘state’ has no real existence other than in the minds of people.

All it takes is for people to believe differently about government and the law, or to believe nothing at all.

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This is one reason why ‘legitimacy’ matters – and, because legitimacy matters, it is also why constitutionalism matters.

Constitutionalism is the notion that there are certain rules and principles of political conduct that have priority over mere political expediency and party advantage.

Once the institutions and processes of the state are stripped of their legitimacy then there is little to no reason for people to accord respect and deference to government and law.

And when people no longer see a government and its law as legitimate then, absent a programme of coercion, there is the pre-condition for a political – even social – crisis.

Sensible politicians of the right and left once knew this.

The reckless assaults on constitutional norms in the United Kingdom and the United States are the political equivalent of playing with fire.

And so there is immense danger when there are politicians like Donald Trump and Boris Johnson that are hyper-partisan, undermining the legitimacy of (with Trump) elections and (with Johnson) the separation of powers and checks and balances.

This may not end well.

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