Category: Communications and Media & Law and Policy

The removal of the Johnson “Chief of Staff” story – a media lawyer’s perspective

20 June 2022

The pulling by the Times of the ‘Chief of Staff’ story about Boris and Carrie Johnson is interesting in many ways – and this post explains why it is interesting from a media lawyer’s perspective.

As a preliminary point, however, I must mention I have no private information about any of this – this post is based entirely on information in the public domain.

And this post is not about the details about the story, of which I have no knowledge – it is instead an account of how decisions are made and not made to publish and pull such stories.

(By way of background – part of my own legal practice is media defence, protecting journalists and publications from legal threats.)

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From a media lawyer’s perspective, there are two key decisions here.

The first was the decision to publish.

For a well-resourced, well-lawyered news title like the Times, things are not published casually in their print editions.

There is an internal editorial and often legal process that is followed.

The published article is often like stage five of a process, and not stage one.

And this is especially the case when the reporter in question is experienced and competent.

There will be a lot of source-checking and verification by the reporter themselves.

Sometimes corners are cut and mistakes made – and ‘online’ stories often do not have the same care.

But stories in print editions of well-resourced, well-lawyered news titles like the Times are not published by accident.

This means that it was believed that the story “stood up” before it was published – and that the serious allegation made in the story was sufficiently grounded so as to minimise or eliminate legal risk.

It also means (usually) that the targets of the serious allegation have had an opportunity to have the allegations put to them before publication – or at least should have done.

And this pre-publication stage would have been the time for any legal threats aimed at preventing publication.

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The second is the decision to pull the story.

Here I will put forward the perhaps unpopular view that there is nothing wrong with a story being pulled from later print editions (and from the internet) if it becomes obvious that the story no longer stands up.

Indeed, it is a pity that does not happen more often – but most editors are reluctant to pull something once published.

But if new information comes to light so it is plain that the story published is not correct, or if it becomes apparent that legal wrong has been committed in how the story was put together, then pulling the story can be an appropriate and responsible thing to do.

It is, however, exceptional.

The new information must be substantial, or the crystallised legal risk must be overwhelming.

As to pull a story is a serious thing to do.

Especially when that story stood up after the editing and (what is called) ‘lawyering‘ process.

And for a story to be pulled rapidly implies that the process before publication had failed.

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So when this story was pulled, I assumed that something had come to light that meant that the story no longer stood up.

This was unlikely, in the circumstances, given the seniority and reputation of the journalist involved.

But other possibilities seemed even more unlikely.

Some on Twitter speculated wildly and breathlessly about ‘super-injunctions’ and ‘D-Noticies’ – but neither made sense in these circumstances, not least because that would not explain the decision to publish, as both such an injunction or a D-Notice would usually have been served once those against whom the allegations were being made were approached for prior comment.

And the subject matter of the story also did not lend itself to ‘super-injunctions’ and ‘D-Noticies’– it was about public money (not an entirely private matter) and there was no obvious, serious issue of national security.

(‘Super-injunctions’ are also now almost impossible to obtain.)

So, ruling out a ‘super-injunction’ and a ‘D-Noticie’ left only the mundane explanation that the story no longer stood up – notwithstanding the pre-publication process and the standing of the journalist.

This sort of thing happens – and there is nothing wrong with pulling a story that no longer stands up.

But.

The journalist then stated that he did stand by the story – meaning that, as far as he was concerned, the story still stood up.

And many of the details of the story had already been published in a book – and this made it difficult to see how the story was legally problematic.

So there was not a journalistic reason for pulling the story.

And there was not a legal reason for pulling the story.

This meant that the story may have been pulled for another reason – a non-journalistic, non-legal explanation.

How curious.

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The curious resignation letter of Lord Geidt – what it says, what it does not say, and what it signifies

16th June 2022

Lord Geidt is an unlikely man of steel.

Yet it appears that steel was the reason for his resignation.

And so, as a discreet but embarrassed courtier, he has chosen to exit via the ‘trade’ route.

(Photo by Chance Agrella from Freerange Stock – donation made.)

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See this outstanding and informative thread from the estimable trade expert Sam Lowe for the practical background to this matter:

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But what can we make of the resignation letter and the reply?

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Lord Geidt comes from a diplomatic background.

And diplomats, like lawyers, are wordsmiths.

(It is just that their wordsmithery is often about imprecision and ambiguity, in contrast to the lawyerly lust for precision and clarity.)

He will have chosen his words and formulations carefully.

So let us look at the operative paragraph:

An “impossible and odious position” is quite a striking thing to say.

(Though “deliberate and purposeful” seems a tautology.)

The Prime Minister’s letter sets out more about the request for advice:

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There is a lot here that does not make immediate sense.

Lord Geidt for all his many merits is not a lawyer, still less a trade lawyer.

There would be no obvious reason for “tasking” him for a view on something to do with the legality of tariffs.

The question must have come before him another way.

Some are speculating that it may be because of party donations, but this appears to be being denied (though the denial is in a curious form):

My current suspicion is that there may have been a request for a ministerial direction to do something with which an official did not feel comfortable, which then somehow got referred to Lord Geidt.

Who knows.

But connecting the [X] of a steel tariffs issue to the [Y] of an ethics adviser resigning is not easy.

And this is the case even if Lord Geidt simply used this issue as a pretext to resign.

There is something missing here.

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But.

What is not missing here, however, is that this incident shows that our current Prime Minister is at best indifferent to two rules-based regimes.

The first is the Ministerial Code – which, as this blog has previously averred, is a constitutional nonsense, as it offers no real check or balance whatsoever to any Prime Minister.

The second is the rules-based system of the World Trade Organisation.

You may recall government-supporters during Brexit clamouring for the United Kingdom to trade on ‘WTO terms’.

It often seemed they did not know what that actually meant, and it was said because it sounded good.

Well.

It seems that the government of the United Kingdom is as contemptuous of this type of international law as it is of others.

This very week we have seen the government of the United Kingdom seek to break international law with the Northern Irish Protocol Bill and make aggressive noises about compliance with the orders of the European Court of Human Rights.

The rules of the World Trade Organisation are now the third international law regime the government of the United Kingdom want to be free from this week – and it is still only Thursday lunchtime.

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At the heart of this government is a sense of lawlessness – that in area after area there is the view that rules do not and should not apply.

The resignation of Lord Geidt seems to be a double-whammy of two such areas – the Ministerial Code and WTO rules.

But it could have been compliance with the orders of the European Court of Human Rights, or compliance with the Northern Irish Protocol, or compliance with Covid regulations, and so on.

And so on.

Perhaps we will find out more about the circumstances of this particular resignation.

But we already know from previous resignations that much of what has happened is already all too clear.

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The Prime Minister says he “takes full responsibility” – but what does this mean in constitutional terms, if anything?

25th May 2022

Today we take in the now-published Sue Gray report.

The quick-takes have already been given and a parliamentary statement has come and gone, as the rest of us who have an interest digest the details of the report.

This post is not about the report in detail, but about the current Prime Minister’s response.

It is a response that Boris Johnson often gives at times of trouble.

It is the response of saying that he ‘takes full responsibility’.

What could this phrase mean?

Note the ‘responsibility’ he purports to take is ‘full’ – and so, presumably, this is intended to mean something (or to convey that it means something) distinct from taking mere responsibility.

Oh no – this is ‘full’ responsibility.

Rhetorically, it is an impressive statement – to which some may even nod-along.

But it is hard, if not impossible, to see what it means.

For example: what actually is different as a consequence of Johnson saying he ‘takes full responsibility’?

What things change that otherwise would not change, but for the Prime Minister saying that he ‘takes full responsibility’.

What is different from the Prime Minister saying instead “I am not taking full responsibility” or “I am not taking any responsibility whatsoever?”.

There is not any real difference; nothing changes.

If the Prime Minister instead said a sequence of nonsense words, it would have the same constitutional import.

This is because, in constitutional terms, when the Prime Minister says he is taking ‘full responsibility’, he is saying nothing meaningful.

In constitutional terms, the position is exactly the same after the moment Johnson says it, as when he does not say it.

It is instead a rhetorical device – a political tactic to get him through an awkward moment, cynically giving the impression to the listener that something grave is being conceded or admitted, when nothing is being accepted at all.

For, in constitutional terms, a Prime Minister taking ‘ full responsibility’ for a serious wrong is to perform an action, rather than to say a thing.

The action the Prime Minister would perform is to resign.

And if there is not a resignation after a serious wrong then ‘ full responsibility’ has not been taken.

Indeed, by using it as a deft rhetorical trick, Johnson evades taking full responsibility.

So next time you hear the current Prime Minister assure you and others that he ‘takes full responsibility’, substitute for that phase a sequence of random words and sounds, for it will have the same constitutional meaning.

That is to say: no constitutional meaning at all.

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The importance of access to good legal advice: how Johnson had only one penalty while junior Downing Street staff had many

23rd May 2022

Some of the best lawyers in the country work for those who often state publicly their disdain for lawyers.

Some of the best media lawyers work for the tabloid press who insult lawyers on front pages and blame them for many social and political ills.

And some of the best regulatory and procedural lawyers help populist politicians and pundits get out of all sorts of scrapes.

None of this is surprising – being part of the tabloid media or being a populist politician or pundit is a high-risk activity.

Such figures will regularly face civil and/or criminal liability in what they want to say or do, but thanks to their good lawyers they are kept safe.

The irony is, of course, that the stock lines-to-take of such figures include ridicule and hostility towards the lawyers who help others.

Those lawyers are ‘activists’ and invariably ‘left-wing’ – some are even ‘human rights’ lawyers.

In other words: the populists dislike lawyers that keep other sorts of people from legal harm, while taking the benefit of lawyers who keep populists safe.

From time-to-time you can see this discrepancy in practical examples.

During the phone-hacking cases, certain publishers took the benefit of outstanding legal advice, while sometimes letting individual reporters and their sources fend for themselves.

And last week we saw the same with the Downing Street parties and the now-closed Metropolitan police investigation.

It would appear that senior Downing Street figures escaped penalties while junior staff incurred them.

And it seems to be the situation that this discrepancy may be because senior figures had the the benefit of deft legal advice in how to complete (and not complete) the questionnaires, while more junior staff provided answers that had  not had the benefit of such advice.

This sort of ‘getting off on a technicality’ would – if it were about migrants or other marginalised group, or loud protesters – be met by emphatic criticism from populist politicians and the tabloid press.

But as it is the leaders of a populist government, then there is hardly a word.

There is nothing wrong with such senior figures having access to competent legal advice.

The issue is not that some have access to good lawyers, but that not everyone does.

Everybody facing criminal liability should have access to the legal advice of the standard that assisted Boris Johnson in ‘Partygate’.

And when you next see denouncements of ‘activist’ lawyers, remind yourself that those denouncements often come from those with ready access to the best quality legal advice, when those that need help from ‘activist’ lawyers often do not.

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Four possible consequences of Partygate

19th May 2022

Partygate, again.

Today the Metropolitan Police announced the end of their investigation.

This means that, in small part, the Partygate issue comes to an end.

But there are at least four things which may now flow from the circumstances of the unlawful gatherings at Number 10 during the pandemic.

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The first, of course, is publication of the Sue Gray report.

This unseen report now has many expectations loaded onto it.

It is useful to remind yourself of her terms of reference.

Whatever is – and is not – in her published report, it is more likely than not to be in accordance with these terms of reference.

It is also useful to remind yourself of her truncated interim ‘update’.

That update indicated – though not in any definite way – where there may be problems for Downing Street when the final report is published (see this blog’s previous post here).

Two paragraphs of the update, in particular, are worth reminding yourself of:

“ii. At least some of the gatherings in question represent a serious failure to observe not just the high standards expected of those working at the heart of Government but also of the standards expected of the entire British population at the time.

“iii. At times it seems there was too little thought given to what was happening across the country in considering the appropriateness of some of these gatherings, the risks they presented to public health and how they might appear to the public. There were failures of leadership and judgment by different parts of No 10 and the Cabinet Office at different times. Some of the events should not have been allowed to take place. Other events should not have been allowed to develop as they did.”

Whether the report leads to any political change – and whether it is, in fact, the timebomb suggested by the earlier post – is, of course, determined by politics and the remarkable capacity of the current Prime Minister to evade accountability.

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The second consequence of Partygate is – on the face of it – potentially more significant constitutionally.

This is the House of Commons committee’s investigation into whether the Prime Minister misled parliament.

Here a difficulty for the Prime Minister is not so much whether he realised the parties he attended were unlawful gatherings, but when he knew.

This is important because, as this blog has previously set out, it appears that the Prime Minister is not only under an obligation to put the record straight, but also to do so at the earliest opportunity.

This point was well explained by Alexander Horne in this thread:

Even if the Prime Minister did not realise at the time the gatherings were unlawful, he no doubt knew once he saw the Sue Gray report and/or was advised in response to the Metropolitan Police investigation.

The committee may perhaps find that Boris Johnson did tell parliament at the first available opportunity, or it may hold the rule somehow does not apply, or it may censure him.

Again, the political consequences of any censure – or sanction – are not predictable with the current Prime Minister.

But misleading the House of Commons and not correcting the record as soon as one can are still serious matters, even in this age of Johnson, Brexit and 2022.

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A third possible consequence of Partygate is the worrying normalisation of politically motivated reporting of opponents to the police.

This blog recently set out this concern – and the concern has also been articulated by newspaper columnists:

This is an issue distinct from the obvious truth that politicians should not be above the law.

This issue is about when there is political pressure for there to be police intervention in respect of opponents, where such pressure would not be applied in respect of one’s own ‘side’.

Unless a report would be made to the police in the same circumstances when it was a political ally rather than an opponent, the report is being made on a partisan basis.

And routine goading of police involvement – and their coercive powers – on a partisan basis is not a good sign in any political system.

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The fourth possible consequence is more optimistic.

The covid regulations were an exercise in bad and rushed legislation, where – even accounting for it being a pandemic – insufficient care was given to the rules imposed and to how they were enforced.

This was pointed out at the time – by this blog and many other legal commentators.

The fact there was a pandemic was used as an excuse for shoddy drafting rather than it being the reason.

And part of the shoddiness was, no doubt, because these were seen by those in the executive as being rules for other people – that is, for the rest of us.

One perhaps positive thing about Partygate is that senior officials, politicians and advisers in the government now are aware that such rules can apply to them.

This may mean that in the event of another pandemic requiring similar rules, the provisions will have more anxious scrutiny before being put in palce and enforced.

That said, of course, it is perhaps also possible that the government will just make sure that future rules expressly do not apply to Whitehall.

But we have to take what possible positives that we can from this gods-awful governmentally-self-inflicted political, legal and constitutional mess, known as Partygate.

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What may be the real problem with the”Wagatha Christie” case

18th May 2022

The “Wagatha Christie” case is currently adding to the gaiety of the nation.

And as the wise Marina Hyde avers in her Guardian column, the case indicates the truth that one should avoid civil litigation wherever possible.

https://twitter.com/MarinaHyde/status/1525099409624686593

But as the legal journalist John Hyde points out in his Law Gazette blog, avoiding litigation is what litigation lawyers spend a lot of their time advising clients to do.

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Litigation is risky and expensive – and not only for the clients.

The notion that the lawyers will be dancing all the way to the bank whatever happens is not correct – some outcomes will not make them dance at all.

And, as this blog has previously pointed out, a high-profile and/or high-value civil trial usually means there has been a failure somewhere.

(In general, a civil trial is where one party sues another, as opposed to a criminal trial where the state prosecutes a party.)

This is because the process of civil litigation is geared towards settlement of a dispute before it reaches trial.

Trials – like battles – are expensive and unpredictable.

Trials also hand practical control of the case to a third party – the court.

So just as the prudent general seeks to prevail against their opponent without risking an open battle, so does the prudent civil litigator.

Civil litigators generally prefer to settle on the best possible terms than risk any trial.

This is especially true in a case where either the evidence or the law is stacked obviously in favour of one party and against the other.

On the face of it – the “Wagatha Christie” case is one-sided – at least in respect of what has been reported from court and the documents disclosed.

And few would say that the claimant has come out of the hearings well, on any view of the overall merits.

This is not a case that should ever have gone to trial.

So – how has such a case ended up in court?

One possible explanation is that the court reporting and publicly disclosed documents are misleading us onlookers, and that the case is finely balanced – and both sides are confident of victory.

This does happen in civil litigation sometimes – though usually be the time the two sides know the respective cases, and the evidence to be relied on, both the parties’ lawyers will usually have a common assessment of the merits of the claim.

A second explanation is that one or both of the parties is/are determined to have ‘their day in court’.

In other words: it is open to a client to disregard the advice of their lawyer to settle on the best possible terms.

And here, even if Rebekah Vardy wins the claim, she has lost overall.

There is a third explanation.

This is that the costs of the litigation – the various overall costs consequences and elaborate funding mechanisms – now mean that the parties are locked into a trial, as the chance of success outweighs the burden of costs they may incur.

In essence, the parties are going to trial because it would now be too expensive to settle.

You then have the spectacle of a trial going ahead which the parties probably do not want, the lawyers no doubt advised against, but it is now too expensive for settlement.

I do not know if this is what has happened in the ‘Wagatha Christie’ case – I will leave the detective work to the peerless Coleen Rooney.

But there has been a failure somewhere.

It is a mistake for onlookers to assume that the parties and the lawyers necessarily wanted this spectacle to go ahead – they may not have had an alternative once the case had got so far.

And so the problem is not necessarily the bad decisions of a party or the bad advice of lawyers, but a systemic problem with high-profile and/or high-value civil cases.

If so, then it is the civil litigation system that is adding to the gaiety of the nation, and not just the parties and their lawyers.

Charles Dickens would understand.

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What the next Queen’s Speech may tell us about this government

27th April 2022

Yesterday’s I newspaper had this interesting front page about the upcoming Queen’s Speech:

The article supporting the front page told us:

“At least a dozen Government bills which were promised at the Queen’s Speech a year ago will not become law in time for the next speech which takes place on 10 May. Downing Street is seeking to push through another 10 pieces of legislation in the next few days.”

What is especially interesting about this front page is its timing.

We are more-or-less at the midpoint of this parliament.

The last general election was on 12 December 2019, and the latest date for the next election, it would seem, is 24 January 2025.

The next Queen’s Speech – which has been set for 10 May 2022 – will mark the start of the last full parliamentary session where there would be adequate time for any significant reforms to be properly carried through after enactment.

In other words: if the government was to attempt major changes through legislation, this is the time.

But.

This government does not appear to have the appetite for major reforms.

Promised overhauls of, for example, our complex systems for planning or procurement will again not be put forward.

The (impartial) House of Commons Library provides the following list of Bills promised in the last Queen’s Speech that are yet to be introduced:

(‘Procurement Bill’ sounds like a bloke who works in supplier management in a less exciting sequel to Postman Pat.)

The library also lists the bills ‘foreshadowed’:

But as any decent scriptwriter will tell you, foreshadowing is not character (or story) development.

And it would seem that this government finds it easier to announce fundamental reforms than to actually take them forward and implement those reforms.

The ultimate reason for this is simple.

Reform is hard, policy is hard, law-making is hard.

Getting one’s thoughts together to the extent of actually having a Bill ready to introduce to parliament is hard.

The first reading in parliament of a Bill is not stage one of a process, but about stage seven or eight.

The hard work takes place on the departments and with parliamentary drafters.

Handing a Bill to ministers to pilot through parliament is not to be done lightly.

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The former Downing Street adviser Dominic Cummings had – regardless of his other merits and otherwise – ambitious plans to shake our planning and public procurement regimes.

No sensible person with knowledge of planning or public procurement would say the current arrangements are perfect.

An ambitious, reforming government would now be ready to grapple with fundamental reforms in planning, public procurement, and many other areas.

And this government would be in a strong position to do – on paper.

For this government has the greatest prize that the constitution of the United Kingdom can bestow: a large working majority in the House of Commons.

This means the government not only has all the advantages of extensive executive power (under the royal prerogative and otherwise), and access to the government legal service and the treasury panel of barristers for fighting cases in the courts.

It also means that the government can be confident of passing legislation through the House of Commons and, if necessary, forcing it through the House of Lords too.

Few Prime Minsters win this prize.

Clement Attlee had this prize, and used it to drive through welfare state legislation; Thatcher did with trade union and privatisation legislation; and even Tony Blair, in his first term, was able to get the Human Rights Act and other legislation on the statute book.

And our current government?

Here is a challenge: take a moment to name one flagship Act of Parliament passed since the general election.

Yes, there has been Brexit and Covid legislation – but this would have to have been passed whoever won the last general election.

Can you think of one?

I am a law and policy commentator – and I can can only think of a possible few – though various nasty laws on borders and protests are about to come enacted.

Of course: Brexit and Covid have taken a lot of government and parliamentary time, as have Afghanistan and Ukraine.

But.

At this mid-term moment, a government with a large working majority should be raring to go.

Yet it is not.

It a government that cannot even be confident to block or amend a reference to the privileges committee about the Prime Minister.

As Norman Lamont once said of then Prime Minister John Major, we have a government in office but not in power.

And that was when Major government had a very small majority, not the working majority of nearly eighty of Boris Johnson.

So this could be a significant Queen’s Speech – but its true significance may be about what it does not contain, rather than what it does.

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Twitter after Elon Musk

26th April 2022

There is a standing joke among social historians that the middle class is always rising, and the gentry always declining, in whatever period of history you are looking at.

Similarly, social media seems always to have been in decline – even though it is, historically speaking, a recent innovation.

There will be people reading and commenting on this blogpost who were adults before Facebook and other social media platforms were even heard of – or even before the invention of the WWW in 1989.

(The WWW appears to have been first proposed just before my eighteenth birthday – so ahem: never such innocence again.)

Perhaps some parts of social media are improving, and some parts declining, and some parts are just the same.

But there is a moment where things do seem to reach a turning-point, even if only for individuals.

The recent news about the intended purchase of Twitter by Elon Musk seems like a good turning-point – although it is not yet completed.

Before this news, you could kid yourself that you were on a social platform that was still maintained by those who created it.

That made it seem different – at least to me.

But the prospect of providing free content for the benefit of reportedly the world’s richest person seems an odd thing to do.

I will keep my Twitter account, with its following of just under 250,000 – as it would be foolish to abandon it as I continue to develop my career as a writer.

But I suspect I will only now use it as a ‘broadcast’ medium, to promote my stuff here and elsewhere (and reply to other tweets when apt).

And it must be said Twitter can be a vile and annoying place – and it is difficult to see how that can ever end.

Just as our species was always violent – it just gained the capacity through technology to be lethal on an industrial scale not available to other animals – our species is also not very pleasant in its use of communications and media.

It is just that we now can all be unpleasant to strangers on a massive scale.

Some think regulation is the answer – but it is hard to see how regulation can change or buck human nature, and pre-moderation and verification for all is not likely or credible for any large platform.

Social media cannot be uninvented.

But people’s habits can change, and it may be that Twitter and other social media will be left to those either broadcasting or bickering, or hiding in private walled gardens.

So thank you for following me here on this blog, where I will post every week day.

I am also going to start doing a podcast from time-to-time.

We can keep up a polite and constructive conversation about law and policy here, even if nowhere else.

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Why it will really matter when the Prime Minister realised he had misled the House of Commons – even if his four misleading statements were in good faith

22nd April 2022

As the cliché of American political reporting has it: what did the president know, and when did he know it?

Applying this same sort of question to current British politics, it may not be important so much that the prime minister (says he) did not realise he had misled the house of commons on four occasions, but about when he realised he had done so.

Here we need to look at this Twitter thread by the estimable Alexander Horne:

It will be impossible for any sensible person to believe that the prime minister did not realise at the time he misled the commons that he was lying.

Of course he did.

But – let’s pretend that the prime minister inadvertently misled the house of commons and that he believed in the truth of what he was saying.

Let’s pretend.

At some point between then and this week, he would have come to the realisation that he had misled the house of commons.

That might be when he had subsequent advice and briefings in respect of his evidence to the Sue Gray investigation.

It might have been when he had sight of the Sue Gray report.

It might have been when he had subsequent advice and briefings in respect of his evidence to the metropolitan police investigation.

But it is unlikely that the first time he realised was when he received his (first) fixed penalty notice.

Now, let us turn to a curious form of words used by the prime minister last Tuesday in his statement to the house of commons (emphasis added):

“Let me also say—not by way of mitigation or excuse, but purely because it explains my previous words in this House—that it did not occur to me, then or subsequently, that a gathering in the Cabinet Room just before a vital meeting on covid strategy could amount to a breach of the rules.”

At the time, that the two words “or subsequently” struck me as odd and in need of explanation.

The words did not seem like mere surplusage.

And now, given Horne’s highly useful and informed thread, the meaning of those two words are apparent.

For it is one thing for the prime minister to claim that he did not realise at the time of his four statements that he was misleading the house of commons.

But it is quite another for him to also maintain that he corrected “any inadvertent error at the earliest opportunity”.

At some point between the four misleading statements to the house of commons and last week’s statement, the prime minister became aware that those four statements were not true.

(Of course, he knew at the time he misled the house, but let us continue pretending for the sake of exposition and analysis.)

And if and when the Sue Gray report is published (and/or the briefing given to the prime minister for the metropolitan police inquiry is disclosed) it may become plain that the prime minister did not correct “any inadvertent error at the earliest opportunity”.

Those two words “or subsequently” are going to be doing a lot of work.

For, if it can be shown that even if the prime minister did in good faith mislead the house of commons on each of those four occasions, he also needs to satisfy the privileges committee that he corrected “any inadvertent error at the earliest opportunity”.

And it may be that the Sue Gray report – or other information – may show that is just not true.

Given the powers of the privileges committee, that will not be a comfortable position for the prime minister.

He should brace, brace.

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Along with Fake News and Fake Law, we have Fake Policy

20th April 2022

A ‘policy’ can be understood as a means to an end.

In a political context, a policy is the means by which various elements of the state can be used to achieve an outcome that would not be achieved, but for that policy.

Those elements can be ‘hard’ – for example, the use of legal prohibitions or coercive sanctions.

And other elements can be ‘soft’ – such as budget allocation and funding, administrative priority, the issuing of guidance, or the exercise of leadership.

But whatever combination of elements, the usual notion is that a policy is there to do something in practical terms – to have an ‘in real life’ (IRL) effect.

And then…

…and then we have the ‘policies’ of our current home secretary.

Of course, the home secretary is not the only minister to make announcements of policies which were not really intended to ever have effect, so as to ‘play well’ with the media or voters.

But it is difficult to think of a politician so adept at promoting such fake policies.

Take the Rwanda proposal (which has already featured on this blog).

A moment’s thought will indicate to any sensible person that the policy makes no sense IRL.

For example: that the proposal is for only some but not all of the asylum seekers to be transported onto Rwanda does not and cannot ‘break’ any ‘business model’.

The traffickers will instead just adjust their model so as to focus on those who are less likely to be moved on.

This is a point so bleedingly obvious that even the former home secretary and prime minister Theresa May – who promoted the vile ‘hostile environment’ policy – can see that it will not work.

Even Theresa May.

But.

The Rwanda proposal is not being promoted because it will work – or is capable of working.

The home secretary even admitted in formal correspondence published on the government’s own website that there is no evidence that the policy will work to deter anyone.

The proposal is there as a thing in itself – to rally illiberal supporters and ‘to own the libs’.

In the event this policy ever gets implemented, this fake quality will still be true as to its essence.

It is not a policy in any practical or meaningful sense – it is a signal.

And signals something positive or negative, depending on one’s values.

The publicity, like the cruelty, is the point.

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Thank you for reading – and please support this blog so that it can carry on.

These free-to-read law and policy posts every week day take time and opportunity cost to put together, as do the comments to moderate.

So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

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

For more on this blog’s Comments Policy see this page.