Category: Communications and Media & Law and Policy

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.

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.

**

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

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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.

**

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.

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***

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What the Home Secretary’s Ministerial Direction on Rwanda signifies – and what it does not signify

18th April 2022

The home secretary has issued ‘a ministerial direction’ for her proposal for a ‘migration and economic development partnership’ with Rwanda for the processing of asylum claims.

Such a direction is significant – but it is also important to realise what it does not signify.

The direction by itself does not mean that the proposal is wrong, or will not work, or is unlawful.

What it does mean is that there is sufficient concern within the home office that the most senior official wants Priti Patel to own the decision to go ahead with it.

And this is worth exploring.

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The partnership proposal was published last (Maundy) Thursday – which is odd, given that parliament was not sitting and we are around the time of the start of the central government ‘purdah’ for the local election campaigns.

Also published was a memorandum of understanding (MoU) with Rwanda.

In general terms, an MoU is a document that is supposed to impress you as as being effective and formal, but is not actually effective nor formal.

A political (and legal) sleight of hand (SoH).

And followers of this blog will enjoy the wording of paragraph 2.2 of the MoU:

“2.2 For the avoidance of doubt, the commitments set out in this Memorandum are made by the United Kingdom to Rwanda and vice versa and do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals.”

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So that was (Maundy) Thursday.

On (Easter) Saturday, in the late afternoon, two letters were published by the government.

These letters were dated 13 April 2022, that is the Wednesday before the proposal and the MoU were published on the Thursday.

The first letter was from the most senior civil servant at the home office.

He was insisting on a ministerial direction.

Why?

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To answer that question we need to understand government policy on ‘managing public money’.

This policy is not the sort of partisan policy which politicians announce or publish in a manifesto.

It is instead the sort of policy which any government has, regardless of which part is in power.

And within each department the most senior official – in this case the permanent secretary – is the ‘accounting officer’ responsible for ensuring the policy is complied with.

When I was a government lawyer fifteen years ago, it was known as ‘VFM’ – value for money.

Part of the ‘managing public money’ policy provides:

The fine folk at the Institute of Government have provided this excellent explainer on ministerial directions which you should now read.

And this is the government’s own page for such directions.

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Now we go back to the permanent secretary’s letter.

You will see the first three paragraphs set out his understanding of the policy and what it is seeking to achieve – and this is set out in positive terms to which the home secretary herself cannot object.

The fourth paragraph then sets out his role as the accounting officer, and the fifth paragraph sets out the extent to which he sees there is no problem with the Rwanda proposal (emphasis added):

“The Accounting Officer advice that I have received comprises a rigorous assessment of the regularity, propriety, feasibility and value for money of this policy, drawing on legal, policy and operational expertise.  I have satisfied myself that it is regular, proper and feasible for this policy to proceed. We have incorporated learning from Windrush in developing this policy and the plans for its implementation.”

So, according to the official it is generally “regular, proper and feasible” for the proposal to proceed.

But.

There is something about which he as accounting officer is not satisfied, and this is set out out in the next paragraphs (which I have separated out for flow):

“However, this advice highlights the uncertainty surrounding the value for money of the proposal.

“I recognise that, despite the high cost of this policy, there are potentially significant savings to be realised from deterring people entering the UK illegally.

“Value for money of the policy is dependent on it being effective as a deterrent.

“Evidence of a deterrent effect is highly uncertain and cannot be quantified with sufficient certainty to provide me with the necessary level of assurance over value for money.

I do not believe sufficient evidence can be obtained to demonstrate that the policy will have a deterrent effect significant enough to make the policy value for money.

“This does not mean that the MEDP cannot have the appropriate deterrent effect; just that it there is not sufficient evidence for me to conclude that it will.”

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The proposal has a “high cost” – but there is no sufficient evidence that the high cost will be offset by savings from it having any deterrent effect.

The evidence for such an effect is not only uncertain but “highly uncertain”.

He therefore cannot sign off on the policy as accounting officer.

He instead needs to escalate it to the minister to sign off personally.

And so (again broken up for flow):

“Therefore, I will require your written instruction to proceed.

“I consider it is entirely appropriate for you to make a judgement to proceed in the light of the illegal migration challenge the country is facing.

“I will of course follow this direction and ensure the Department continues to support the implementation of the policy to the very best of our abilities.

“Should you issue a direction, I am required to copy all relevant papers to the Comptroller and Auditor General (who will inform the Public Accounts Committee) and the Treasury Officer of Accounts.

“I anticipate publishing our exchange of direction letters as early as practicable.”

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So this is not any usurpation of ministerial responsibility and democratic control, but a reinforcement of the priority of minister over officials.

The minister will get their way – but they have to take the decision themselves.

And so the home secretary replied, giving the direction.

Her letter is also worth looking at – though this time for what it does not say.

Her letter does not engage with the value for money points but sidesteps them (again broken for flow):

“While we understand it is not possible for HMG to accurately model the deterrent effect from day one, together with Rwanda, we are confident this policy is our best chance at producing that effect.

“It is only by introducing new incentives and effective deterrents into the system, as our international partners like Denmark, Greece, and Australia have succeeded in doing, that we can take on the criminal gangs facilitating illegal entry and break their lethal business model.

“I recognise your assessment on the immediate value for money aspect of this proposal.

“However, I note that without action, costs will continue to rise, lives will continue to be lost, and that together we have introduced safeguards into our agreement to protect taxpayer funding.

“And while accepting the constraints of the accounting officer framework set out by HM Treasury, I also think there are credible invest-to-save arguments in the long term.

[…]

…I also believe there is an imperative to act now to mitigate the impact on staff wellbeing as well as departmental operational and financial pressures in the longer term.

“It would therefore be imprudent in my view, as Home Secretary, to allow the absence of quantifiable and dynamic modelling – which is inevitable when developing a response to global crises influenced by so many geopolitical factors such as climate change, war and conflict –– to delay delivery of a policy that we believe will reduce illegal migration, save lives, and ultimately break the business model of the smuggling gangs.

“I am therefore formally directing you as Accounting Officer to take forward this scheme with immediate effect, managing the identified risks as best you can.”

*

For the home secretary, the lack of sufficient evidence of any deterrent effect does not matter.

She believes the Rwanda proposal will work, and so it shall be taken forward.

She is confident that in the longer-term there will be value for money, and – in any case – modelling is not easy for this sort of things.

Her decision; her call.

*

Of course, one should be wary of taking documents such as these two exchanged letters seriously at face value.

Such exchanges can be choreographed and it sometimes (though not here one suspects, given the disjoined nature of the reply) the same official will draft both letters – ‘sign here minister’.

It could be that the request for a direction here is a manifestation of deeper unease within the home office at this proposal – and that such a request, framed in VFM terms, was the only way of signalling publicly this unease.

The bureaucratic equivalent of the blinking hostage.

On the other hand, the home office is certainly capable of nasty and expensive policies.

And the permanent secretary in his fifth paragraph goes out of his way to say it is “regular, proper and feasible for this policy to proceed”.

Who knows?

Perhaps the permanent secretary knew the value for money objection could not be gainsaid and that it would not look like he was criticising the merits of the proposal.

Perhaps, perhaps, perhaps.

We do not know the realities behind the scenes.

The request for a direction is significant – but what it signifies generally is not clear.

But what we do know from this exchange of letters is that on the very eve of the publication of the proposal, the most senior official in the home office said that there was not sufficient evidence that the proposal would have any deterrent effect, and in response to this the home secretary could not provide any such evidence but wanted to go ahead with the policy anyway.

**

Thank you for reading – and please support this blog.

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

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Censorship vs the Babble – both work for authoritarians

7th April 2022

This post is just to set a quick thought (as I am recovering from illness).

It is to contrast and compare two things, which seem to be leading to a common end.

The first is Putin-style censorship – the sort which means Russians generally do not appear to have true information available about the invasion of Ukraine.

This suits the authoritarian nationalist populist Putin.

The second is the anything-goes babble of social media and 24-hour online news and comments, where few are actually censored.

The effect of this babble appears to be that liberal and progressive voices are drowned out, with hyper-partisan shouts of fake news and ‘balance’.

This suits the authoritarian nationalist populist politicians in many other countries.

So we have two modes of media which seem very different, but which have the same authoritarian effect of undermining and restricting critical voices.

Anyway, just a quick thought. What do you think?

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April Fools Day in an age of Fake News and Hyper-Partisanship

1st April 2022

I tweeted something knowingly untrue this morning.

I said that, contrary to my long-standing absolute and principled objection to the gods-awful and professionally divisive QC system, I had the honour of accepting appointment as a QC.

Given the aside in yesterday’s in yesterday’s post, I thought it may amuse somebody out there.

I think it amused one or two.

But it convinced many more.

And so I got hearty sincere congratulations for something I would never do, and indeed I would rather boil my head than do.

Many readily believed I would brazenly be such a hypocrite.

A prominent Tory politician did something similar – and got this earnest tut-tut response from a Guardian journalist:

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And then it struck me.

What a dated thing to do.

April Fool’s Day is now itself as dated as the black-and-white Panorama film footage of spaghetti-bearing trees.

April Fool’s Day in part presupposes a core trusted media, where one can be playfully topsy-turvey with the actualité.

A twelfth night of inversions – but with the media.

An annual exception to the mundane lot of straight(-ish) reportage.

Yet with social media, fake news and hyper-partisanship, such inversions are a commonplace.

The norm even, and not an exception.

Perhaps we can instead have a day each year where everyone – including all on social media – has to be strict with the truth.

And if we did, one suspects that would not last past midday either.

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Blue ticks on Twitter – the problems with regulation and self-regulation

31st March 2022

Some people who care about these things are upset when they don’t have a ‘blue tick’ verification mark on their Twitter account.

Some people who care even more about these things are upset when, for whatever reason, their cherished ‘blue tick’ is removed.

I happen to have a high-follower Twitter account – where I tweet about things where credibility and indeed verification can be important – but I do not have and do not want a ‘blue tick’.

(Indeed, I have refused one.)

Why?

Isn’t credibility and verification important?

Well.

There are different ways of having credibility and different methods of verification.

I tweet (and blog) about the law, but I rarely say expressly that I am legally qualified.

This is because I want the content of my commentary itself to have credibility, rather than to appeal to authority.

If I have to resort to ‘actually I am a solicitor’ then something has gone astray in my commentary.

Either I get the law right or I get the law wrong – and in neither case should having ‘lawyer’ or ‘solicitor’ in my bio make any difference, still less a ‘blue tick’ against my name.

(I have a similar problem with lawyers who insist on having ‘QC’ on their social media account, as if their tweets are court pleadings, or formal advices or opinions.)

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Indeed, in my opinion the ‘blue tick’ can confer a false sense of authority.

A view can be taken that a thing must be true or fair – just because it has been tweeted (or re-tweeted) by a ‘blue tick’ account.

Yet nasty and vile tweets can be tweeted by ‘blue tick’ accounts, as well as factually false information.

This is because a ‘blue tick’ is not actually a badge of credibility or verification, but – too often – a substitute for one.

Such an objection, however, does not mean that anything goes.

Instead, it means people should be critical with what they engage on social media.

Ask questions: who follows an account, who does an account frequently engage with, what are the replies and quote-tweets of a tweet, does the tweeter link to sources – and so on.

Forming your own view, in other words – rather than nodding-along with a false badge of authority.

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I know the easy response to this will be for some to say that I misunderstand social media – and that people do not want to think for themselves.

But – we are still in the early history of social media and internet-based global communications, and we should not mistake what social media is like now with what it may become.

We could all shout at strangers in the street or on the bus – but almost nobody does, even though the opportunity is there.

And similarly people may become more measured and sensible in how they interact on social media.

The best regulation, in my view, comes from – where possible – empowering people to make informed decisions.

And the arbitrary and non-transparent system of ‘blue ticks’ – which confer respectability on some unpleasant and/or false tweets – is the means of encouraging people to not make informed decisions, rather than making them.

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A balancing exercise in action – Chris Mullin defeats a disclosure request in respect of the Birmingham pub bombings

23rd March 2022

I was born and brought up in the Birmingham of the 1970s, and like many others I had family and family friends who could well have been killed in the Birmingham pub bombings.

There is a powerful public interest in that crime being properly investigated and those guilty being convicted.

Six innocent men were convicted for the bombings, and their prosecution and punishments was an appalling miscarriage of justice, perhaps one of the worst miscarriages of justice in English legal history.

There was a powerful public interest in that miscarriage of justice being exposed and corrected.

And the journalist (and later politician) Chris Mullin was the one who did most to expose and correct that miscarriage of justice.

What happens when two powerful public interests such as the above collide?

That was the issue before the recorder of London at the Old Bailey.

On one hand, those police officers investigating the bombings want access to materials held by Mullin.

You can see why the police would want this – especially if it would contain direct evidence that would aid a successful prosecution.

But that does not necessarily mean the police should get it.

The reason is that the material which Mullin holds was given to him on the basis of confidentiality, so that he could expose the miscarriage of justice.

Without that assurance to his source, Mullin would not have been given that information, and without that information the miscarriage of justice would not have been exposed.

And so the public interest in exposing that miscarriage of justice would have been defeated.

In a detailed and fascinating judgment, the judge shows how the competing – indeed contrasting – public interests in this case should be balanced.

And in a compelling conclusion the judge holds that in this case there should not be an order for disclosure of the material.

It is unfortunate that this means that any prosecution of those guilty of the bombings will not be assisted by this material – but such a prosecution should not be at the cost of undermining the public interest in exposing a miscarriage of justice.

Not only is the judgment compelling, it also is another recent example of a judge taking Article 10 of the ECHR and the right to free expression seriously.

It is a good judgment in a difficult case, and it is recommended reading for anyone interested in practical law and policy.

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